IRLF 


511 


LIBRARY 

OF  THE      ' 

UNIVERSITY  OF  CALIFORNIA. 

GIFT  OF 


S/  ^^VVT"^  \      LAyT 

Q  .....  5 


• 


°7 


/Uz&J?L^>C^>. 

^v 


PACIFIC  COAST 


COLLECTION  LAWS 


A    SUMMARY    OF    THE 

LAWS    OF   CALIFORNIA,   NEVADA,   OREGON,  WASHINGTON 
TERRITORY,  IDAHO,  MONTANA,  UTAH,  WYOMING,  ARI- 
ZONA, AND  BRITISH  COLUMBIA,  AND  OF  THE  UNITED 
STATES,   IN  RELATION  TO  BANKRUPTCY; 

ALSO, 

THE  JURISDICTION  OF  IT.  S.   COURTS, 

WITH 

THE    NAMES    OF    RELIABLE    ATTORNEYS    IN    THE    PRINCIPAL 
CITIES  AND  TOWNS  THROUGHOUT  THE  PACIFIC  COAST. 


BY 


J.    H.    JELLETT, 

Attorney  at  Law. 


SAN    FRANCISCO: 

BACON    &    COMPANY,    BOOK    AND    JOB    PRINTERS, 
Corner  of  Clay  and  Sansome  Streets. 

1876. 


Entered  according  to  Act  of  'Congress  in.  the  year  1875,  by 

J.  H.  JELLETT, 
In  the  office  of  the  Librarian  of  Congress  at  Washington,  D.  C 


PREFACE. 


Having  for  upwards  of  six  years  been  in  charge  of  the  Law  and 
Collection  Department  of  "  The  Mercantile  Agency  "  of  K.  G. 
DUN  &  Co.,  San  Francisco,  the  compiling  of  this  work  has  sug- 
gested itself  to  me  as  important  to  Bankers,  Merchants,  and  Man- 
ufacturers having  business  transactions  in  the  Pacific  States  and 
Territories,  including  British  Columbia.  Further,  it  has  been 
prepared  with  a  view  to  aid  Attorneys  and  Notaries  in  matters 
arising  outside  of  their  own  State  or  Territory. 

I  have  endeavored  to  give  a  concise  statement  of  the  laws  relat- 
ing to  the  collection  of  debts,  together  with  the  names  of  carefully 
selected  attorneys  ;  and  in  compiling  the  work  have  been  assisted 
by  the  following  named  practicing  attorneys : 

DOLPH,  BRONOUGH,  DOLPH  &  SIMON Portland,  Oregon. 

BISHOP  &  SABIN Pioche,  Nevada. 

LEWIS  BURNES Salt  Lake  City,  Utah. 

HON.  JAMES  K.  KENNEDY  ..  Walla  Walla,  Washington  Territory. 

D.  E.  CULLEN Helena,  Montana. 

E.  P.  JOHNSON Cheyenne,  Wyoming. 

JONAS  W.  BROWN Idaho  City,  Idaho. 

M.  W.  T.  DRAKE,  of  Drake  &  Jackson Victoria,  B.  C. 

J.  H.  JELLETT. 

SAN  FRANCISCO,  January,  1876. 


CONTENTS. 


PART  I. 
ATTORNEYS. 

PART  II. 

JURISDICTION  OF  U.  S.  COURTS  AND  BANKRUPTCY 
PROCEEDINGS. 

CHAPTEU  I.     Courts  and  their  Jurisdiction  ..........................   19 

II.    Bankruptcy  ..........................................  21 

PART  III. 


CHAPTER  I.  Courts  and  their  Jurisdiction  ............................  29 

II.  Terms  of  Courts,  When  and  Where  Held  .................  32 

HE.  Place  of  Trial  of  Civil  Actions  ...........................  35 

IV.  Limitation  of  Civil  Actions  ..............................  39 

V.  Parties  to  Suits  —  Commencement  of  Actions  ..............  42 

VI.  Form  of  Civil  Actions—  Pleadings  ........................  46 

VH.  Attachments  ............................................  51 

VIII.  Claim  and  Delivery  of  Personal  Property  .................  56 

IX.  Arrest  and  Bail  .  .  ...................  58 


CONTENTS.  5 

CHAPTER  X.     Injunctions 60 

XL     Judgments  and  Judgment  Liens 60 

XII.     Execution — Sale  and  Redemption 67 

XIII.  Proceedings  Supplementary  to  Execution 74 

XIV.  Costs '. 76 

XV.     Appeals  in  Civil  Actions 77 

XVI.     NewTrials   , 82 

XVII.     Estates  of  Deceased  Persons 83 

XVIII.     Descents 88 

XIX.     Liens  of  Mechanics  and  others  upon  Real  Property 91 

XX.     Liens  for  Salaries  and  Wages 94 

XXI.     Arbitrations 95 

XXII.     Homesteads 95 

XXHI.     Corporations 97 

XXIV.     Mode  of  taking  Testimony  of  Witnesses 99 

XXV.     Judicial  Records,  How  Proved 100 

XXVI.     Acknowledgments 102 

XXVH.     Partnerships 105 

XXVIII.     Married  Women 108 

XXIX.     Minors 110 

XXX.     Stoppage  in  transit Ill 

XXXI.     Bills  of  Lading 112 

XXXH.     Interest 112 

XXXIII.  Common  Carriers, 113 

XXXIV.  Mprtgages  of  Personal  Property 114 

XXXV,    Pledge 116 

XXXVI.     Guarantee  and  Suretyship 117 

XXXVH..    Sale 119 

XXXVHI.     Contracts 120 

XXXLX.    Negotiable  Instruments 121 

XL.     Principal  and  Agent 129 


PART  IV. 


CHAPTER  I.  Courts— Jurisdiction  and  Terms  of  Courts 131 

IL  Time  allowed  to  Answer — Service  by  Publication — Place 

of  Trial 134 

IH.  Limitation  of  Actions ." 135 

IV.  Attachments 137 

V.  Arrest  in  Civil  Actions 137 

VI.  Judgments  and  Judgment  Liens 138 

VII.  Executions,  Exemptions,  Sale  and  Redemption 139 

VIII.  Proceedings  Supplementary  to  Execution 141 

IX.  Security  for  Costs >. 142 


CONTENTS. 

€HAPTER  X.    Appeals. 142 

XI.     Estates  of  Deceased  Persons 143 

XII.     Homesteads 144 

XIII.  Of  Witnesses  and  Depositions 145 

XIV.  Judicial  Records,  How  Proved 148 

XV.     Acknowledgments 149 

XVI.     Affidavits,  before  whom  to  be  taken 150 

XVII.     Limited  Partnerships 151 

XVIII.     Married  Women 152 

XIX.     Corporations : . .  152 

XX.     Chattel  Mortgages 153 

XXI.     Interest  and  Usury 153 

XXII.     Promissory  Notes  and  Bills  of  Exchange 154 

XXIII.     Mortgages 154 


PART  V. 
OREQOJST. 


CHAPTER  I.     Courts  and  their  Jurisdiction 155 

II.     Terms  of  Courts,  When  and  Where  Held 156 

HI.     Commencement  of  Suits 158 

IV,     Place  of  Trial  of  Civil  Actions *159 

V.     Limitation  of  Actions 159 

VI.     Attachments 161 

VII.     Arrest  in  Civil  Actions 161 

VIII.     Judgments  and  Judgment  Liens 162 

IX.     Executions,  Exemptions,  Sale  and  Redemption 163 

X.     Proceedings  Supplementary  to  Execution 164 

XI.     Security  for  Costs 164 

XII.    Appeals 165 

XIII.  Estates  of  Deceased  Persons 166 

XIV.  Descent  of  Real  Property 167 

XV.     Descent  of  Personal  Property 168 

XVI.     Homesteads  and  Dower 169 

XVII.     Depositions 169 

XVIII.     Judicial  Records    171 

XIX.     Acknowledgments 171 

XX.     Limited  Partnerships 172 

XXI.     Married  Women 173 

XXII.     Corporations 174 

-  XXIII.     Chattel  Mortgages 174 

XXIV.     Interest  and  Usury 175 


CONTENTS. 


PART  VI. 
TJT-AH. 

CHAPTER  I.     The  Courts  and  their  Jurisdiction 177 

II.     The  Terms  of  Courts,  and  Places  of  Holding  same. 178 

HI.  Commencement  of  Suits,  and  Time  allowed  Defendants  to 

Plead 178 

IV.     Limitations  of  Actions 179 

V.     Attachments 179 

VI.     Arrests  in  Civil  Actions 180 

VII.     Judgments  and  Judgment  Liens 181 

VIII.     Executions,  Exemptions,  Sales  and  Redemption 182 

IX.     Proceedings  in  Aid  of  Executions «- 184 

X.     Security  for  Costs 185 

XL     Appeals 186 

XII.     Estates  of  Deceased  Persons 187 

XIII.  Homesteads 188 

XIV.  Depositions 189 

XV.     Judicial  Records,  How  Proven 191 

XVI.     Acknowledgments 192 

XVII.     Partnerships 193 

XVni.     Married  Women 194 

XIX.     Corporations 194 

XX.     Chattel  Mortgages 195 

XXI.     Interest  and  Usury 195 


PART  VII. 


CHAPTER  I.  Courts,  Their  Jurisdiction  and  Terms 197 

II.  Commencement  of  Actions 198 

HI.  Place  of  Trial  of  Civil  Actions 199 

IV.  Limitations  of  Civil  Actions.  . . . . . 200 

V.  Attachments •. 202 

VI.  Arrest  in  Civil  Actions , 203 

VII.  Judgments  and  Judgment  Liens 204 

VIII.  Executions,  Exemptions,  Sale  and  Redemption 205 

IX.  Proceedings  Supplementary  to  Execution 208 

X.  Security  for  Costs 208 


CONTENTS. 

CHAPTER  XI.  Appeals  in  General 209 

.      XII.  Homesteads 210 

XIII.  Estates  of  Deceased,  Persons 210 

XIV.  Depositions 213 

XV.  Judicial  Records 214 

XVI.  Acknowledgments 215 

XVII.  Limited  Partnerships 216 

XVIII.  Married  Women 217 

XIX.  Corporations 218 

XX.  Chattel  Mortgages 219 

,    XXI.  Interest  and  Usury 219 

XXII.  Affidavits 220 

XXIII.  Sole  Traders. . .  . .  220 


PART  VIII. 
WYOMINQ. 


CHAPTER  I.  Courts  and  their  Jurisdiction 223 

IL  Terms  of  Courts,  When  and  Where  Held 224 

IIL  Commencement  of  Actions,  Time  to  Answer,  Place  of  Trial .  224 

IV.  Limitation  of  Actions 225 

V.  Attachments 226 

VI.  Arrest  in  Civil  Actions 227 

VTI.  Judgment  Liens 228 

VIII.  Executions,  Sale,  Redemption  and  Exemptions.  ^. 228 

IX.  Proceedings  in  aid  of  Executions .  .230 

X.  Security  for  Costs 230 

XI.  Appeals. 231 

XII.  Estates  of  Deceased  Persons 231 

XIH.  Descents  and  Distribution  of  Property 232 

XIV.  Depositions 235 

XV.  Judicial  Records 236 

XVI.  Acknowledgments 236 

XVII.  Limited  Partnerships '. ...  .237 

XVIH.  Married  Women 238 

XIX.  Chattel  Mortgages 238 

XX.  Interest  and  Usury 239 


CONTENTS. 


PART  IX. 


CHAPTER  I.  Courts,  their  Jurisdiction  and  Terms  ....................  241 

IE.  Time   allowed  Defendant  to  Answer  —  Place  of  Trial  of 

Civil  Actions  .....................................  242 

HI.  Limitation  of  Actions  ..................  ................  243 

IV.  Attachments  —  Arrests  in  Civil  Cases  ....................  244 

V.  Judgment  Liens  —  Executions,  Exemptions,  Sale  and  Re- 

demption ........................................  245 

VI.  Proceedings  Supplementary  to  Executions  ................  247 

VII.  Security  for  Costs—  Appeals  ............................  247 

VIII.  Estates  of  Deceased  Persons—  Homesteads  ................  248 

IX.  Depositions  —  Judicial  Records  —  Acknowledgments  ........  248  , 

X.  Limited  Partnerships  ..................................  249  , 

XI.  Married  Women  ......................................  250, 

XII.  Corporations—  Chattel  Mortgages—  Interest  ..............  250:, 


PART  X. 
WASHINGTON  TERRITORY. 


CHAPTER  I.     Courts  and  their  Jurisdiction 253 

H.     Terms  of  Courts,  When  and  Where  Held 254 

III.  Commencement  of  Suits — Time  allowed  to  Answer 255 

IV.  Place  of  Trial  of  Civil  Actions 256 

V.     Limitation  of  Actions 257 

VI.    Attachments 258 

VII.    Arrest  in  Civil  Actions 260 

VIII.     Judgments  and  Judgment  Liens 261 

IX.     Executions,  Exemptions,  Sales  and  Redemptions 262 

X.     Proceedings  Supplementary  to  Execution 265 

XI.     Security  for  Costs 265 

XII.     Appeals  and  Writs  of  Error 266 

XIII.  Estates  of  Deceased  Persons 266 

XIV.  Homesteads , 267 

XV.  *  Depositions 268 

XVI.    Judicial  Record  of  other  States,  How  Proved 269 

XVII.    Acknowledgments 269 

XVIII.     Limited  Partnerships 271 

XIX.     Married  Women 271 

XX.     Corporations 271 

XXI.     Chattel  Mortgages 272 

XXII.  Interest..,                                                                                 ..272 


10  CONTENTS. 


PART  XI 


CHAPTER  I.  Courts  and  their  Jurisdiction  ...........................  273 

II.  Terms  of  Courts,  When  and  Where  Held  ................  274 

HI.  Commencement  of  Suits  ................................  275 

IV.  Place  of  Trial  of  €ivil  Actions  ..........................  276 

V.  Limitation  of  Actions  ..................................  278 

VI.  Attachments  ........................................  .  .280 

VII.  Arrest  in  Civil  Actions  .................................  281 

VIII.  Judgments  and  Judgment  Liens  ........................  282 

IX.  Executions,  Exemptions,  Sale  and  Redemption  ...........  283 

X.  Proceedings  Supplementary  to  Execution  ................  284 

XI.  Estates  of  Deceased  Persons  ............................  285 

XII.  Affidavits  and  Depositions  .........  .  ....................  287 

XIII.  Acknowledgments  .....................................  287 

XIV.  Married  Women  .............  .  .........................  289 

XV.  Chattel  Mortgages  .....................................  289 

XVI.  Interest  ...................................  ...........  290 

XVII.  Bills  of  Exchange  ....................................  291 


PART  XII. 
BRITISH    COLUMBIA. 

CHAPTER  I.     Courts,  their  Jurisdiction  and  Terms 293 

II.     Commencement  of  Suits 294 

III.  Limitation  of  Actions 295 

IV,  Attachments— Arrest  in  Civil  Actions 296 

V.     Judgments  and  Judgment  Liens 296 

VI.     Executions,  Exemptions,  Redemption,  Sale 297 

VII.     Security  for  Costs.. ., 297 

VIII.     Appeals .' 298 

IX.     Estates  of  Deceased  Persons 298 

X.     Homesteads ; 299 

XI.    Depositions : *. 299 

XII.     Judicial  Records — Acknowledgments 299 

XIII.  Limited  Partnerships 300 

XIV.  Married  Women 300 

XV.     Mortgages 301 

XVI.     Interest  and  Usury 301 

XVII.  Land  Laws. . .                                                                          . .  302 


PAKT  I. 


ATTOENEYS. 


THE     FOLLOWING     ARE    RECOMMENDED     AS     RELIABLE. 


CALIFORNIA. 


COUNTY. 

RESIDENCE. 

NAME. 

Alameda 

Oakland 

T.  C.  Plunkett. 

Amador 

Livermore  .... 
Pleasanton  .  .  . 

Jackson 

J 

E.  Aubury. 
J.  R.  Palmer. 

Also  Notary  Public. 

J.  M.  Porter. 

Butte      .... 

Oroville 

John  C.  Gray. 

Chico    

Park  Henshaw. 

Colusa  

Colusa 

John  T.  Harrington. 

Contra  Costa.  . 

Martinez  
Antioch 

Mills  &  Jones. 
James  T.  Cruikshank. 

Del  Norte  
'  El  Dorado  .... 
Fresno  

Crescent  City  . 
Placerville  .... 
Fresno  . 

W.  A.  Hamilton. 
George   G.  Blanchard. 
H.  S.  Dixon. 

Humboldt  . 

Eureka  , 

Tames  'Hanna. 

12 


ATTORNEYS. 

CALIFORNIA—  Continued. 


[Part  1, 


COUNTY. 

RESIDENCE. 

NAME. 

Inyo  

Independence  . 

Reddy  &  Conklin. 

Kern 

Bakersfield  .  .  . 

J.  W.  Freeman. 

Lake       

Lakeport  

A.  P.  McCarty. 

Lassen    

Susanville  .... 

J.  S.  Chapman. 

Los  Angeles.  . 
Marin    

^os  Angeles.  . 
San  Rafael  .... 

Henry  T.  Hazard. 
Hepburn  Wilkins. 

Mariposa 

Vtariposa  

John  M.  Corcoran. 

Mendocino 

Ukiah       

Thos  L.  Carothers. 

Merced 

Merced  

Samuel  C.  Bates, 

Modoc  

Dorris  Bridge. 

Collector. 

Geo.  F.  Harris.    • 

Monterey 

Salinas  

M.  Farley. 

Napa 

Napa  

R.  Burnell. 

Nevada  

Nevada  City.  . 

Jno.  I.  Caldwell. 

Grass  Valley  .  . 
Truckee   

A.  J.  Ridge. 
C.  F.  McGlashan. 

Placer  

Ophir, 

Tames  Moore. 

Plumas 

(Near  Auburn.) 

Ouincv   . 

J.  D.  Goodwin. 

La  Porte     .  .  . 

G.  G.  Clough. 

Sacramento  .  .  . 

Sacramento  .  .  . 

Edgerton,  Tubbs  & 

r"rJ^      Successors    to    Beatty 

V^Olt^.             ».   T-k™..,,., 

Part  1.] 


ATTORNEYS. 

CALIFORNIA—  Continued. 


13 


COUNTY. 

RESIDENCE. 

NAME. 

San  Benito  .... 

Hollister  

N.  C.  Briggs. 

San  Bernardino 

San  Bernardino 

H.  C.  Rolfe. 

San  Diego  .... 

San  Diego  .... 

Chase  &  Leach. 

San  Francisco  . 

San  Francisco. 

Campbell,  Fox  &  Camp- 
bell. 

San  Joaquin     . 

Stockton  

E.  H.  Rixford. 
Jos.  M.  Cavis. 

San  Luis  Obis- 

DO 

San  Luis  Obis* 

DO 

Harrison  &  McMurtry    " 

r 

San  Mateo  .... 

nv  •  • 

Redwood  City  . 

Geo.  W.  Fox. 

Santa  Barbara. 
Santa  Clara.  .  . 

Santa  Barbara 
San  Jose 

Jarrett  T.  Richards. 
C.  D.  Wright 

Gilroy   

W.  W.  Hoover. 

Santa  Cruz  .  .  . 

Santa  Cruz  .... 

E.  L.  Williams. 

Shasta  

Watsonville  .  .  . 
Shasta  

J.  A.  Barham. 
Ephraim  Garter 

Sierra   

Downieville 

E   Barry 

Siskiyou   

Yreka 

E  Steele 

Solano  

S«uisun 

Joseph  McKenna 

Vallejo  

S.  G.  Hilborn. 

Sonoma  

Santa  Rosa    .  . 

James  H.  McGee. 

Healdsburg  .  .  . 

H.  C.  Firebaugh. 

14 


ATTORNEYS. 

CALIFORNIA—  Continued. 


[Part  1, 


COUNTY. 

RESIDENCE. 

NAME. 

Sonoma  

Petaluma 

W  D   Bliss 

Stanislaus  .... 

Modesto  

A.  Hewel. 

Sutler  

Yuba  City 

Stabler  &  Bayne. 

Tehama    

Red  Bluff.    . 

W.  Henry  Jones. 

Tulare 

Visalia 

Brown  &  Daggett. 

Tuolumne  .... 

Sonora  . 

C.  L.  Street. 

Ventura  

San  Bitenaven- 

tura       .  .  . 

Henry  Robinson 

Yolo 

Woodland 

C  S   Frost 

Yuba 

Marysville 

Van  CHef  &  Cowden. 

NEVADA. 


COUNTY. 

RESIDENCE. 

NAME. 

Douglas  

Genoa  

D.  W.  Virgin. 

Elko     

Elko       

R.  R.  Bigelow. 

Esmeralda  .... 
Eureka  

Aurora   ...... 
Eureka   

A.  L.  Greeley. 
Geo.  W.  Baker. 

Humboldt  .... 
Lander 

Winnemucca  . 
Austin 

W.  L.    French,' 

Collector. 

Henry  Mayenbaum. 

Lincoln  . 

Pioche  . 

Bishop  &  Sabin. 

Part  1.] 


ATTORNEYS. 

NEVADA—  Continued. 


15 


COUNTY. 

RESIDENCE. 

NAME. 

Lyon 

Dayton  

Geo.  W.  Keith. 

Nve 

Belmont  

Williams  &  Owen. 

xi  y\s 

Ormsby  

Carson  City  .  .  . 

Wm.  Patterson. 

Storey  

Virginia  City  .  . 

W.  E.  F.  Deal. 

Washoe  

R.eno  

C.  W.  Jones, 

Collector. 

ORJEOON. 


COUNTY. 

RESIDENCE. 

•  . 

NAME. 

Baker  

Baker  City.  ... 

L.  O.  Sterns. 

Benton  

Corvallis  

Also  Notary  Public. 

F.  A.  Chenoweth. 

Clackamas  .... 
Coos 

Oregon  City  .  . 
Empire  City 

Johnson  &  Cowan. 
D  L  Watson 

Douerlas  . 

Roseburg  . 

J   F  Watson. 

Jackson    ..... 

Jacksonville 

H.  K.  Hanna. 

Lane  

Eugene  City 

George  B.  Dorris 

Linn  

Albany  

Powell  &  Flinn 

Marion  .  .  

Salem  

Knight  &  Lord. 

Multnomah  .  .  . 

Portland  

Dolph,  Bronough, 

Dolph  &  Simon. 

16 


ATTORNEYS. 

OREGON—  Continued. 


[Part  1, 


COUNTY. 

RESIDENCE. 

NAME. 

Polk  

Dallas 

J   L  Collins 

Umatilla. 

Pendleton 

H   Turner 

Union  

La  Grande 

B  W   Lichtenthaler 

Wasco  

The  Dalles 

J    B  Condon 

Washington.  .  . 

Hillsboro     .  .  . 

Thos.  H.  Tongue. 

Yam  Hill  

La  Fayette 

H   Hurley 

UTAH    TERRITORY. 


COUNTY. 

RESIDENCE. 

NAME. 

Salt  Lake  .... 
Box  Elder 

Salt  Lake  City. 
Corinne  

Lewis  Burnes. 
E.  P.  Johnson. 

WASHINGTON    TERRITORY. 


COUNTY. 

RESIDENCE. 

NAME. 

Clarke  

Vancouver.  .  .  . 
Port  Townsend 
Seattle  . 

Charles  Brown, 

Collector. 

Judson  &  Kuhn. 
Learv  &  McNaught. 

Jefferson  
Kine*.. 

Part  1.]  ATTORNEYS. 

WASHINGTON  TERRITORY—  Continued. 


17 


COUNTY. 

RESIDENCE. 

NAME. 

Pierce     .  .    .  . 

Steilacoom  .  .  . 

Jacob  Hoover. 

Thurston 

Olympia         .  . 

John  P.  Tudson. 

Walla  Walla.. 

Walla  Walla.. 

Kennedy  &  George. 

James  K.  Kennedy, 
Late   Judge   District    Court,  .  First 
Judicial  District. 
Wyatt  A.  George. 

MONTANA   TERRITORY. 


COUNTY. 

RESIDENCE. 

NAME. 

Gallatiri  

Bozeman  .... 

Sharp  &  Napton 

Lewis  &  Clarke 

Helena   

W.  E.  Cullen. 

Madison  

Virginia  City 

Theo.  Muffly 

IDAHO    TERRITORY. 


COUNTY. 

RESIDENCE. 

NAME. 

Ada  

Boise  City 

H   E   Prickett 

Boise  

Idaho  Citv 

Jonas  W^   Brown 

Nez  Perces  .  .  . 

J 

Lewiston  

J.  M.  Howe. 

2 

i 

18 


ATTORNEYS. 


[Part  1, 


ARIZONA    TERRITORY. 


COUNTY. 

RESIDENCE. 

NAME. 

Pima  

Tucson  .  .    .  . 

Farley  &  Pornroy. 

WYOMING-    TERRITORY. 


COUNTY. 

RESIDENCE. 

NAME. 

Laramie  

Cheyenne. 

E.  P.  Johnson. 

BRITISH    COLUMBIA. 


DISTRICT. 

RESIDENCE. 

NAME. 

Victoria  . 

Victoria  . 

Drake  &  Tackson. 

PART  II. 

JURISDICTION  OF  U.  S.  COURTS  AND  BANK 
RUPTCY  PROCEEDINGS. 


CHAPTER  I. 

COURTS  AND  THEIR  JURISDICTION. 

The  CIRCUIT  COURTS  of  the  United  States  have  jurisdiction — 

Of  all  suits  of  a  civil  nature  at  common  law  .or  in  equity,  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds  the  sum  or  value 
of  five  hundred  dollars,  and  an  alien  is  a  party,  or  the  suit  is  be- 
tween a  citizen  of  the  State  where  it  is  brought  and  a  citizen  of 
another  State  :  Provided,  that  no  Circuit  Court  shall  have  cog- 
nizance of  any  suit  to  recover  the  contents  of  any  promissory  note 
or  other  chose  in  action  in  favor  of  an  assignee,  unless  a  suit  might 
have  been  prosecuted  in  such  Court  to  recover  the  said  contents  if 
no  assignment  had  been  made,  except  in  case  of  foreign  bills  of  ex- 
change. 

In  all  suits  at  law  or  in  equity  arising  under  the  patent  or  copy- 
right laws  of  the  United  States. 

Of  all  suits  by  or  against  any  banking  association  established  in 
the  district  for  which  the  Court  is  held,  under  any  law  providing 
for  national  banking  associations. 

In  matters  of  bankruptcy,  a  general  superintendence  and  juris- 
diction. 

Any  suit  commenced  in  a  State  Court,  when  the  amount  in  dis- 
pute, exclusive  of  costs,  exceeds  the  sum  or  value  of  five  hundred 


20  JURISDICTION  U.   S.    COURTS.  [Part  2. 

dollars,  to  be  made  to  appear  to  the  satisfaction  of  said  Court,  may 
be  removed,  for  trial,  into  the  Circuit  Court  for  the  d^trict  where 
such  suit  is  pending,  next  to  be  held  after  the  filing  of  the  petition 
for  such  removal,  in  the  cases  following  : 

1.  When  the  suit  is  against  an  alien,  or  is  by  a  citizen  of  the 
State  wherein  it  is  brought,  and  against  a  citizen  of  another  State, 
on  the  petition  of  the  defendant. 

2.  When  the  suit  is  against  an  alien  and  a  citizen  of  the  State 
where  it  is  brought,  or  is  by  a  citizen  of  such    State  against   a 
citizen  of  the  same  and  the  citizen  of  another  State,  it  may  be  so 
removed,  as  against  said  alien  or  citizen  of  another  State,  upon  the 
petition  of  such  defendant.     But  such  removal  shall  not  take  away 
or  prejudice  the  right  of  the  plaintiff  to  proceed  at  the  same  time 
with  the  suit  in  the  State  Court,  as  against  the  other  defendants. 

3.  When  a  suit  is  between  a  citizen  of  the  State  in  which  it  is 
brought  and  a  citizen  of  another  State,  it  may  be  removed  on  the 
petition  of  the  latter,  whether  he  be  plaintiff  or  defendant,  if  he 
makes  and  files  in  said  State  Court  an  affidavit,  stating  that  he  has 
reason  to  believe,  and  does  believe,  that,  from  prejudice  or  local 
influence,  he  will  not  be  able  to  obtain  justice  in  such  State  Court. 

The  DISTRICT  COURTS  of  the  United  States  have  jurisdiction — 

In  all  suits  by  or  against  any  association  established  under  any  law 
providing  for  national  banking  associations,  within  the  district  for 
which  the  Court  is  held. 

The  District  Courts  are  constituted  Courts  of  Bankruptcy,  and 
shall  have,  in  their  respective  districts,  original  jurisdiction  in  all 
matters  and  proceedings  in  Bankruptcy. 

It  also  has  jurisdiction  of  suits  for  the  collection  of  the  Internal 
Ee venue,  and  is  the  Court  of  Admiralty. 


Chap.  2.]  BANKRUPTCY.  21 


CHAPTER  II. 

BANKRUPTCY. 

INVOLUNTARY  BANKRUPTCY — ACTS  OF  BANKRUPTCY. 

When  any  person  departs  from  the  State,  district,  or  territory 
of  which  he  is  an  inhabitant,  with  intent  to  defraud  his  creditors  ; 
or,  being  absent,  shall,  with  such  intent,  remain  absent ;  or  shall 
conceal  himself  to  avoid  the  service  of  legal  process  in  any  action 
for  the  recovery  of  a  debt  or  demand  provable  under  the  bank- 
ruptcy act ;  or  shall  conceal  or  remove  any  of  his  property  to  avoid  its 
being  attached,  taken,  or  sequestered  on  legal  process ;  or  shall  make 
any  assignment,  gift,  sale,  conveyance,  or  transfer  of  his  estate, 
property,  rights,  or  credits,  either  within  the  United  States  or  else- 
where, with  intend  to  delay,  defraud,  or  hinder  his  creditors ;  or 
who  has  been  arrested  and  held  in  custody  under,  or  by  virtue  of, 
mesne  process  or  execution,  issued  out  of  any  Court  of  the  United 
States,  or  of  any  State,  district,  or  territory  within  which  such 
debtor  resides  or  has  property,  founded  upon  a  demand  in  its  nature 
provable  against  a  bankrupt's  estate  under  this  act,  and  for  a  sum 
exceeding  one  hundred  dollars,  and  such  process  is  remaining  in  force 
and  not  discharged  by  payment,  or  in  any  other  manner  provided  by 
the  law  of  the  United  States  or  of  such  State,  district,  or  territory, 
applicable  thereto,  for  a  period  of  twenty  days,  or  has  been  actually 
imprisoned  for  more  than  twenty  days  in  a  civil  action  founded  on 
contract  for  the  sum  of  one  hundred  dollars  or  upwards ;  or  who, 
being  bankrupt  or  insolvent,  or  in  contemplation  of  bankruptcy  or 
insolvency,  shall  make  any  payment,  gift,  grant,  sale,  conveyance, 
or  transfer  of  money,  or  other  property,  estate,  rights,  or  credits,  or 
confess  judgment,  or  give  any  warrant  to  confess  judgment,  or 
procure  his  property  to  be  taken  on  legal  process,  with  intent  to 
give  a  preference  to  one  or  more  of  his  creditors,  or  to  any  person 
or  persons  who  are  or  may  be  liable  for  him  as  indorsers,  bail, 
sureties,  or  otherwise ;  or  with  the  intent  by  such  disposition  of  his 
property  to  defeat  or  delay  the  operation  of  the  bankruptcy  act ; 


22  BANKRUPTCY.  [Part  2. 

or  who,  being  a  bank,  banker,  broker,  merchant,  trader,  'manufact- 
urer, or  miner,  has  fraudulently  stopped  payment,  or  being  a  bank, 
banker,  broker,  merchant,  trader,  manufacturer,  or  miner,  has 
stopped  or  suspended  and  not  resumed  payment,  within  a  period  of 
forty  days,  of  his  commercial  paper,  (made  or  passed  in  the  course 
of  his  business  as  such)  or  who,  being  a  bank  or  banker,  shall  fail 
for  forty  days  to  pay  any  depositor  upon  demand  of  payment  law- 
fully made,  shall  be  deemed  to  have  committed  an  act  of  bank- 
ruptcy, and  shall  be  adjudged  a  bankrupt  on  the  petition  of  one 
or  more  of  his  creditors,  who  shall  constitute  one-fourth  thereof,  at 
least,  in  number,  and  the  aggregate  of  whose  debts,  provable  under 
this  act,  amounts  to  at  least  one-third  of  the  debts  so  provable : 
Provided,  that  such  petition  is  brought  within  six  months  after  such 
act  of  bankruptcy. 

The  petition  of  creditors  may  be  sufficiently  verified  by  the 
oaths  of  the  first  five  signers  thereof,  if  so  many  there  be,  and 
if  any  of  the  first  five  signers  shall  not  reside  in  the  district 
in  which  such  petition  is  to  be  filed,  the  same  may  be  signed  and 
verified  by  the  oath  or  oaths  of  the  attorney  or  attorneys,  agent 
or  agents,  of  such  signers ;  and  in  computing  the  number  of 
creditors,  as  aforesaid,  who  shall  join  in  such,  petition,  creditors 
whose  respective  debts  do  not  exceed  two  hundred  and  fifty  dollars 
shall  not  be  received.  But  if  there  be  no  creditors  whose  debts 
exceed  said  sum  of  two  hundred  and  fifty  dollars,  or  if  the  requisite 
number  of  creditors  holding  debts  exceeding  two  hundred  and  fifty 
dollars  fail  to  sign  the  petition,  the  creditors  having  debts  of  a  less 
amount  shall  be  received  for  the  purposes  aforesaid. 

VOLUNTARY  BANKRUPTCY. 

Any  person  residing  within  the  jurisdiction  of  the  United  States^ 
owing  debts  provable  under  the  bankruptcy  act,  exceeding  the 
amount  of  three  hundred  dollars,  may  file  his  petition  in  bankruptcy. 

PREFERENCES  AND  FRAUDULENT  CONVEYANCES. 

If  any  person,  being  insolvent,  or  in  contemplation  of  insolvency, 
within  two  months  before  the  filing  of  the  petition  by  or  against 


Chap.  2.]  BANKRUPTCY.  23 

him,  with  a  view  to  give  a  preference  to  any  creditor  or  person 
having  a  claim  against  him,  or  who  is  under  any  liability  for  him, 
procures  any  part  of  his  property  to  be  attached,  sequestered,  •  or 
seized  on  execution,  or  makes  any  payment,  pledge,  assignment, 
transfer,  or  conveyance  of  any  part  of  his  property,  either  directly 
or  indirectly,  absolutely  or  conditionally,  the  person  receiving  such 
payment,  pledge,  assignment,  transfer,  or  conveyance,  or  to  be 
benefited  thereby,  or  by  such  attachment,  having  reasonable  cause 
to  believe  such  person  is  insolvent,  and  knowing  that  such  attach- 
ment, sequestration,  seizure,  payment,  pledge,  assignment,  or  con- 
veyance, is  made  in  fraud  of  the  provisions  of  the  act,  the  same  shall 
be  void,  and  the  assignee  may  recover  the  property,  or  the  value 
of  it,  from  the  person  so  receiving  it,  or  so  to  be  benefited  ;  and  if 
any  person  being  insolvent,  or  in  contemplation  of  insolvency  or 
bankruptcy,  within  three  months  before  the  filing  of  the  petition 
by  or  against  him,  makes  any  payment,  sale,  assignment,  transfer, 
conveyance,  or  other  disposition  of  any  part  of  his  property  to  any 
person  who  then  has  reasonable  cause  to  believe  him  to  be  insolvent, 
or  to  be  acting  in  contemplation  of  insolvency,  and  knowing  that 
such  payment,  sale,  assignment,  transfer,  or  other  conveyance  is 
made  with  a  view  to  prevent  his  property  from  coming  to  his  as- 
signee in  bankruptcy,  or  to  prevent  the  same  from  being  distributed 
under  the  bankruptcy  act,  or  to  defeat  the  object  of,  or  in  any  way 
impair,  hinder,  impede,  or  delay  the  operation  and  effect  of,  or  to 
evade  any  of  the  provisions  of,  the  bankruptcy  act,  the  sale,  assign- 
ment, transfer,  or  conveyance  shall  be  void,  and  the  assignee  may 
recover  the  property  or  the  value  thereof,  as  assets  of  the  bankrupt 
— and  if  such  sale,  assignment,  transfer  or  conveyance  is  not  made 
in  the  usual  and  ordinary  course  of  business  of  the  debtor,  the 
fact  shall  be  prima  facie  evidence  of  fraud. 

PER  CENT.  TO  BE  PAID  BY  BANKRUPT. 

In  cases  of  involuntary  bankruptcy,  the  bankrupt  is  not  re- 
quired to  pay  a  percentage  of  the  claims  proved  against  the  estate 
in  order  to  entitle  him  to  a  discharge. 

In  cases  of  voluntary  bankruptcy,  no  discharge  shall  be  granted 
to  a  debtor  whose  assets  shall  not  be  equal  to  thirty  per  centum  of 


24  BANKRUPTCY.  [Part  2. 

the  claims  proved  against  his  estate,  upon  which  he  shall  be  liable 
as  principal  debtor,  without  the  assent  of  at  least  one-fourth  of  his 
creditors  in  number,  and  one-third  in  value. 

PROOFS  OP  DEBTS. 

Proofs  of  debts  against  the  estate  of  the  bankrupt,  by  or  on  be- 
half of  creditors  residing  within  the  judicial  district  wh^re  the  pro- 
ceedings in  bankruptcy  are  pending,  shall  be  made  before  one  of 
the  registers  of  the  Court  in  said  district,  or  before  a  notary  pub- 
lic ;  such  proof  to  be  certified  by  the  notary  and  attested  by  his 
signature  and  official  seal ;  and  by  or  on  behalf  of  non-resident 
creditors,  before  any  register  in  bankruptcy  in  the  judicial  district 
where  such  creditors,  or  either  of  them,  reside,  or  before  any  com- 
missioner of  the  Circuit  Court  authorized  to  administer  oaths  in  any 
district,  or  before  a  notary  public ;  certified  and  attested  as  afore- 
said. 

The  affidavit  in  proof  of  claim  shall  be  made  by  the  claimant,  un- 
less he  be  absent  from  the,  United  States,  or  is  prevented  by  some 
other  good  cause  from  testifying,  in  which  case  the  demand  may  be 
verified  by  the  attorney  or  authorized  agent  of  the  claimant. 

When  a  claim  is  presented  for  proof  before  the  election  of  the 
assignee,  and  the  judge  entertains  doubts  of  its  validity,  or  of  the 
right  of  the  creditor  to  prove  it,  and  is  of  opinion  that  such  validity 
or  right  ought  to  be  investigated  by  the  assignee,  he  may  postpone 
the  proof  of  the  claim  until  the  assignee  is  chosen — any  person 
who,  after  the  approval  of  the  act,  shall  have  accepted  any  prefer- 
ence, having  reasonable  cause  to  believe  that  the  same  was  made 
or  given  by  the  debtor,  contrary  to  any  provision  of  the  act,  shall 
not  prove  the  debt  or  claim  on  account  of  which  the  preference  was 
made  or  given ;  nor  shall  he  receive  any  dividend  therefrom  until  he 
shall  first  have  surrendered  to  the  assignee  all  property,  money, 
benefit  or  advantage  received  by  him  under  such  preference. 

When  any  person  who,  being  bankrupt  or  insolvent,  or  in  con- 
templation of  bankruptcy  or  insolvency,  shall  make  any  payment, 
gift,  grant,  sale,  conveyance  or  transfer  of  money  or  other  property, 
estate,  rights  or  credits,  with  intent  to  give  a  preference,  and  upon 


Chap.  2.]  BANKRUPTCY.  25 

being  adjudged  a  bankrupt,  the  assignee  may  recover  back  the 
money  or  property  so  paid,  conveyed,  sold,  assigned,  or  transferred, 
contrary  to  the  act ;  provided,  that  the  person  receiving  such  pay- 
ment or  conveyance  had  reasonable  cause  to  believe  that  the  debtor 
was  insolvent,  and  knew  that  a  fraud  on  the  act  was  intended ; 
and  such  person,  if  a  creditor,  shall  not,  in  case  of  actual  fraud  on 
his  part,  be  allowed  to  prove  for  more  than  a  moiety  of  his  debt. 

LIENS. 

The  lien  of  a  levy  made  under  an  execution,  issued  under  a  final 
judgment,  obtained  in  good  faith  and  without  collusion,  is  preserved, 
provided  such  lien  attached  before  petition  in  bankruptcy  is  filed  ; 
but  the  lien  is  not  preserved  when  it  does  not  attach  until  after 
petition  filed. 

DISCHARGE. 

At  any  time  after  the  expiration  of  six  months  from  the  adjudi- 
cation of  bankruptcy,  or  if  no  debts  have  been  proved  against  the 
bankrupt,  or  if  no  assets  have  come  to  the  hands  of  the  assignee, 
at  any  time  after  the  expiration  of  sixty  days,  and  within  one  year 
from  the  adjudication  of  bankruptcy,  the  bankrupt  may  apply  to 
the  Court  for  a  discharge  from  his  debts,  and  the  Court  shall  there- 
upon order  notice  to  be  given  by  mail  to  all  creditors  who  have 
proved  their  debts,  and  by  publication  at  least  once  a  week  in  such 
newspapers  as  the  Court  shall  designate,  to  appear  on  a  day  ap- 
pointed for  that  purpose,  and  show  cause  why  a  discharge  should 
not  be  granted  to  the  bankrupt.  No  discharge  shall  be  granted, 
or,  if  granted,  be  valid,  if  the  bankrupt  has  willfully  sworn  falsely 
in  his  affidavit  attached  to  his  petition,  schedule,  or  inventory,  or 
upon  any  examination  in  the  course  of  the  proceedings  in  bank- 
ruptcy, in  relation  to  any  material  fact  concerning  his  estate  or  his 
debts,  or  to  any  other  material  fact ;  or  if  he  has  '  concealed  any 
part  of  his  estate  or  effects,  or  any  books  or  writings  relating  there- 
to ;  or  if  he  has  been  guilty  of  any  fraud  or  negligence  in  the  care, 
custody,  or  delivery  to  the  assignee  of  the  property  belonging  to 
him  at  the  time  of  the  presentation  to  him  of  his  petition  and  in- 


26       .  BANKRUPTCY.  [Part  2. 

ventory,  excepting  such  property  as  he  is  permitted  to  retain  under 
the  provisions  of  the  act ;  or  if  he  has  caused,  permitted,  or  suffered 
any  loss,  waste,  or  destruction  thereof  ;  or  if  within  four  months 
before  the  commencement  of  such  proceedings,  he  has  procured 
his  lands,  goods,  moneys,  or  chattels  to  be  attached,  sequestered,  or 
seized  on  execution ;  or  if  he  has  destroyed,  mutilated,  altered,  or  fals- 
ified any  of  his  books,  documents,  papers,  writings,  or  securities,  or 
has  made  or  been  privy  to  the  making  of  any  false  or  fraudulent  entry 
in  any  book  of  account  or  other  document,  with  intent  to  defraud 
his  creditors  ;  or  has  removed  or  caused  to  be  removed  any  part  of 
his  property  from  the  district,  with  intent  to  defraud  his  creditors ; 
or  if  he  has  given  any  fraudulent  preference  contrary  to  the  pro- 
visions of  this  act,  or  made  any  fraudulent  payment,  gift,  transfer, 
conveyance,  or  assignment  of  any  part  of  his  property,  or  has  lost 
any  part  thereof  in  gaming,  or  has  admitted  a  false  or  fictitious 
debt  against  his  estate ;  or  if,  having  knowledge  that  any  person 
has  proved  such  false  or  fictitious  debt,  he  has  not  disclosed  the 
same  to  his  assignee  within  one  month  after  such  knowledge  ;  or  if, 
being  a  merchant  or  tradesman,  he  has  not,  subsequently  to  the 
passage  of  the  act,  kept  proper  books  of  account ;  or  if  he,  or  any 
person  in  his  behalf,  has  procured  the  assent  of  any  creditor  to  the 
discharge,  or  influenced  the  action  of  any  creditor  at  any  stage  of 
the  proceedings,  by  any  pecuniary  consideration  or  obligation  ;  or 
if  he  has,  in  contemplation  of  becoming  bankrupt,  made  any  pledge, 
payment,  transfer,  assignment,  or  conveyance  of  any  part  of  his 
property,  directly  or  indirectly,  absolutely  or  conditionally,  for  the 
purpose  of  preferring  any  creditor  or  person  having  a  claim  against 
him,  or  who  is  or  may  be  under  liability  for  him,  or  for  the  purpose 
of  preventing  the  property  from  coming  into  the  hands  of  the 
assignee,  or  of  being  distributed  under  the  act  in  satisfaction  of  his 
debts  ;  or  if  he  has  been  convicted  of  any  misdemeanor  under  this 
act,  or  has  been  guilty  of  any  fraud  whatever,  contrary  to  the  true 
intent  of  the  act :  and  before  any  discharge  is  granted,  the  bank- 
rupt shall  take  and  subscribe  an  oath  to  the  effect  that  he  has  not 
done,  suffered,  or  been  privy  to  any  act,  matter,  or  thing  specified 
in  the  act  as  a  ground  for  withholding  such  discharge,  or  as  invali- 
dating such  discharge,  if  granted. 


Chap.  2.]  BANKRUPTCY.  27 


COMPOSITION. 

A  meeting  of  creditors  may  be  called  under  the  direction  of  the 
Court,  and  the  creditors  resolve  that  a  composition  proposed  by  the 
debtor  shall  be  accepted  in  satisfaction  of  the  debts  due  to  them 
from  the  debtor.  And  such  resolution  shall,  to  be  operative,  have 
been  passed  by  a  majority  in  number,  and  three-fourths  in  value  of 
the  creditors  of  the  debtor  assembled  at  such  meeting,  either  in 
person  or  by  proxy,  and  shall  be  confirmed  by  the  signatures  thereto 
of  the  debtor  and  two-thirds  in  number  and  one-half  in  value  of  all 
the  creditors  of  the  debtor.  And  in  calculating  a  majority  for  the 
purposes  of  a  composition,  creditors  whose  debts  amount  to  sums 
not  exceeding  fifty  dollars  shall  be  reckoned  in  the  majority  in 
value,  but  not  in  the  majority  in  number ;  and  the  value  of  the  debts 
of  secured  creditors  above  the  amount  of  such  security,  to  be  de- 
termined by  the  Court,  shall,  as  nearly  as  circumstances  admit,  be 
estimated  in  the  same  way.  And  creditors  whose  debts  are  fully 
secured  shall  not  be  entitled  to  vote  upon  or  to  sign  such  resolution, 
without  first  relinquishing  such  security  for  the  benefit  of  the  estate. 

The  resolution  must  be  approved  by  the  Court  and  recorded,  and 
until  so  approved  and  recorded  shall  be  of  no  validity. 

The  provisions  of  a  composition  accepted  by  such  a  resolution 
shall  be  binding  on  all  the  creditors  whose  names  and  addresses, 
and  the  amounts  of  the  debts  due  to  whom,  are  shown  in  the  state- 
ment of  the  debtor,  produced  at  the  meeting  at  which  the  resolu- 
tion shall  have  been  passed ;  but  shall  not  affect  or  prejudice  the 
rights  of  any  other  creditors.  * 


PART  III. 


STATE  OF  CALIFORNIA. 


CHAPTER  I. 

COURTS  AND  THEIR  JURISDICTION. 

THE  SUPREME  COURT  OF  THE  STATE  OP  CALIFORNIA  has  original 
and  appellate  jurisdiction.  Its  original  jurisdiction  extends — 

To  the  issuance  of  writs  of  mandamus,  certiorari,  prohibition,  and 
habeas  corpus,  and  all  other  writs  necessary  or  proper  to  the  com- 
plete exercise  of  its  appellate  jurisdiction. 

Its  appellate  jurisdiction  extends- — 

1.  To  all  civil  actions  for  relief  formerly  given  in  courts    of 
equity. 

2.  To  all  civil  actions  in  which  the  subject  of  litigation  is  not 
capable  of  pecuniary  estimation. 

3.  To  all  civil  actions  in  which  the    subject  of  litigation  is  capa- 
ble of  pecuniary  estimation,  which  involve  the  title  or  possession  of 
real  estate,  or  the  legality  of  any  tax,  impost,  assessment,  toll  or 
municipal  fine,  or  in  which  the-  demand  exclusive  of  interest,  or  the 
value  of  the  property  in  controversy,  amounts  to  three  hundred  dol- 
lars. 

4.  To  all  special  proceedings. 

5.  To  all  cases  arising  in  the  Probate  Courts. 


30  CALIFORNIA.  [Part  3. 


DISTRICT  COURTS. 

\ 

The  jurisdiction  of  these  Courts  extends — 

1.  To  all  civil  actions  for  relief  formerly  given  in  courts  of  equity. 

2.  To  all  civil  actions  in  which  the  subject  of  litigation  is  not 
capable  of  pecuniary  estimation. 

3.  To  all  civil  actions  (except  actions  of  forcible -entry  and  de- 
tainer) in  which  the  subject  of  litigation  is  capable  of  pecuniary  es- 
timation, which  involve  the  title  of  possession  of  real  estate,  or  the 
legality  of  any  tax,  impost,  assessment,  toll  or  municipal  fine,  or  in 
which  the  demand,  exclusive  of  interest,  or   the  value  of  the  prop- 
erty in  controversy,  amounts  to  three  hundred  dollars. 

4.  To   special   proceedings  not  within  the  jurisdiction  of  the 
County  and  Probate  Courts. 

5.  To  the  issuance  of  writs  of  mandamus,  certiorari,  prohibition, 
habeas  corpus,  and  all  writs  necessary  to  the  exercise  of  its  powers. 

COUNTY  COURTS 

i 

Have  original  and  appellate  jurisdiction.     Their  original  jurisdic- 
tion extends — 

1.  To  actions  to  prevent  or  abate  a  nuisance. 

2.  To  actions  of  forcible  entry  and  detainer. 

3.  To  proceedings  in  insolvency. 

4.  To  all  special  cases  or  proceedings  in  which  the  law,  giving 
the  remedy  or  authorizing  the  proceedings,  confers  the  jurisdiction 
upon  it. 

5.  To  the  issuance  of  writs  of  habeas  corpus,  and  all  writs  neces- 
sary to  the  exercise  of  its  powers. 

6.  To  inquire,  by  the  intervention  of  a  grand  jury,  of  all  public 
offenses  committed,  or  triable  in  the  county. 

7.  Their  appellate* jurisdiction  extends  to  all  cases  arising  in 
Justices'  or  Police  Courts. 


Chap.  1.]  CALIFORNIA.  31 


PROBATE  COURTS. 

Probate  Courts  have  jurisdiction — 

1 .  To  open  and  receive  proof  of  last  wills  and  testaments,  and 
to  admit  them  to  probate. 

2.  To  grant  letters  testamentary,  of  administration  and  of  guar- 
dianship, and  to  revoke  the  same. 

3.  To  appoint  appraisers  of  estates  of  deceased  persons. 

4.  To  compel  executors,  administrators  and  guardians  to  render 
accounts. 

5.  To   order  the  sale  of  property  of  estates,  or  belonging  to 
minors. 

6.  To  order  the  payment  of  debts  due  from  estates. 

7.  To  order  and  regulate  all  distributions  and  partitions  of  prop- 
erty, or  estates  of  deceased  persons. 

8.  To  compel  the  attendance  of  witnesses,  and  the  production  of 
title  deeds,  papers,  and  other  property  of  an  estate,  or  of  a  minor. 

9.  To  make  such  orders  as  may  be  necessary  to  the  exercise  of 
the  powers  conferred  upon  it. 

10.  To  exercise  jurisdiction  in  all  matters  of  probate  and  guar- 
dianship. 

JUSTICES'  COURTS. 

The  civil  jurisdiction  of  these  Courts  within  their  respective 
townships  or  cities  extends — 

1 .  To  an  action  arising  on  contract,  for  the  recovery  of  money 
only,  if  the  sum  claimed,  exclusive  of  interest,  does  not  amount  to 
three  hundred  dollars. 

2.  To  an  action  for  damages  for  injury  to  the  person,  or  for  tak- 
ing or  detaining  personal  property,  or  for  injuring  personal  prop- 
erty, or  for  an  injury  to  real  property,  where  no  issue  is  raised  by 
the  answer  involving  the  plaintiff's  title  or  possession  of  the  same, 
if  the  damages  claimed  do  not  amount  to  three  hundred  dollars. 

3.  To  all  actions  for  a  fine,  penalty,  or  forfeiture,  not  amounting 
to  three  hundred  dollars,  given  by  statute  or  the  .ordinance  of  an 
incorporated  city  or  town. 

4.  To  an  action  upon  a  bond  or  undertaking  conditioned  for  the 


32  CALIFORNIA.  [Part  3. 

payment  of  money,  not  amounting  to  three  hundred  dollars,  though 
the  penalty  exceed  that  sum ;  the  judgment  to  be  given  for  the  sum 
actually  due.  When  the  payments  are  to  be  made  by  installments, 
an  action  may  be  "brought  for  each  installment  as  it  falls  due. 

5.  To  an  action  to  recover  the  possession  of  personal  property, 
when  the  value  of  such  property  does  not  amount  to  three  hundred 
dollars. 

6.  To  take  and  enter  judgment  on  the  confession  of  a  defend- 
ant, when  the  amount   confessed,  exclusive  of  interest,  does  not 
amount  to  three  hundred  dollars. 

The  jurisdiction  above  does  not  extend,  however — 

1.  To  a  civil  action  in  which  the  title  or  possession  of  real  prop- 
erty is  put  in  issue. 

2.  Nor  to  an  action  or  proceeding  against  ships,  vessels,  or  boats, 
when  the  suit  or  proceeding  is  for  the  recovery  of  seamen's  wages 
for  a  voyage  performed  in  whole  or  in  part  without  the  waters  of 
this  State. 


CHAPTER  II. 

TERMS  OF  COURTS,  WHEN  AND  WHERE  HELD. 

SUPREME  COURT. 

There  must  be  four  terms  in  each  year  for  the  hearing  of  causes, 
to  commence  on  the  second  Monday  of  January,  April,  July,  and 
October.  The  January  and  July  terms  are  held  at  the  city  of 
San  Francisco.  The  \pril  and  October  terms  are  held  at  the  city 
of  Sacramento.  Additional  terms  may  be  held  by  order  of  the 
Court. 


Chap.  2.] 


CALIFORNIA. 


33 


DISTRICT  COURTS. 

The  State  is  divided  into  twenty  judicial  districts. 
There  is  a  District  Court  in  each  of  the  judicial  districts,  and 
Court  is  held  at  the  county  seat  of  each  county,  as  follows  : 


WHEN   HELD. 


Alameda 

Alpine 

Amador 

Butte 

Calaveras  

Cilusa 

Contra  Costa  .  . 

1  >d  Norte 

El  Dorado 

Fresno 

Humbolclt 

Tnyo 

Kern 

Klamath 

Lake 

Lassen 

Los  Angeles . . . 

Marin 

Maripo.sa 

Mendocino. . .. 

Merced 

Moiloc 

Mono 

Monterey 

Napa ... 

Nevada  

Placer  

Plumas 

Sacramento 


Third 

Sixteenth  . . 
Eleventh... 

Second 

Eleventh... 

Tenth 

Fifteenth  .  . 

Eighth 

Eleventh . . . 

Thirteenth. 

Eighth 

Sixteenth  . . 
Sixteenth  . . 

Eighth 

Seventh 

Second. .  . . 
Seventeenth 
Seventh . . . 


San  Benito 

San  Bernardino 
San  Diego 


San  Francisco  < 


Thirteenth. 

Seventh 

Thirteenth . 

Ninth 

Sixteenth  . . 
Twentieth  . 

Seventh 

Fourteenth. 
Fourteenth . 
Second. .. 
Sixth 

Twentieth  . 
Eighteenth . 
Eighteenth. 


San  Joaquin. . . . 
San  Luis  Obispc 
San  Mateo  . . 


Luis  Obispo  First 


Fifth  ... 

First 

Twelfth. 


Santa  Barbara.. 

Santa  Clara 

Santa  Cruz 

Shasta 

Sierra 

Siskiyou 


First 

Twentieth 
Twentieth 

Ninth 

Tenth 

Ninth... 


Solano 

Sonoma 

Stanislaus 

Sutter 


Tehama 

Trinity 

Tulare 

Tuolumue 

Ventura 

Yolo  ... 
Yuba... 


Seventh 

Seventh..., 

Fifth 

Tenth 

Second 

Ninth 

Thirteenth, 

Fifth , 

First... 


ixth , 

Tenth . .  . 


3d  Monday  February,  June,  and  October. 

1st  Monday  April  and  October. 

2d  Monday  March,  June,  September,  and  December. 

1st  Monday  March  ;  3d  Monday  November ;  2d  Monday  July. 

2d  Monday  January,  April,  July,  and  October. 
4th  Monday  April ;  2d  Monday  August ;  1st  Monday  December. 

3d  Tuesday  April,  July,  and  November. 

2d  Monday  May,  August,  and  November. 

2d  Monday  February,  and  May ;  3d  Monday  August,  and  No- 
vember. 

3d  Monday  February,  June,  and  October. 

2d  Monday  March,  June,  September,  and  December. 

1st  Monday  May  and  November. 

3d  Monday  May  and  November. 

'2d  Monday  April,  July,  and  October. 

3d  Monday  April ;  2d  Monday  November. 

2d  Monday  June  ;  2d  Monday  September. 

1st  Monday  February,  May,  August,  and  November. 

1st  Monday  March  and  July  ;  3d  Monday  November. 

3d  Monday  April ;  3d  Monday  August ;  2d  Monday  December. 

2d  Monday  April ;  3d  Monday  July  ;  1st  Monday  November. 

3d  Monday  March,  July,  and  November. 

2d  Monday  July  ;  3d  Monday  October. 

3d  Monday  April  and  October. 

3d  Monday  March,  July,  and  November. 

1st  Monday  February,  June,  and  October. 

2d  Monday  March,  June,  September,  and  December. 

1st  Monday  February,  May,  August,  and  November. 
4th  Monday  May  ;  1st  Monday  October. 

1st  Monday  February,,  April,  June,  August,  October,  and  De- 
cember. 

1st  Monday  April,  August,  and  December. 

2d  Monday  March,  June,  September,  and  December. 

2d  Monday  January,  April,  July,  and  October. 
3d  D.  C.— 3d  Monday  April,  August,  December.  4th— 1st 
Monday  February,  May,  August,  December.  12th — 1st  Mon- 
day January,  April,  July,'  October.  15th — 1st  Monday  March, 
June,  September,  December.  19th — 1st  Monday  April,  Au- 
gust, and  December. 

1st  Monday  February,  May,  August ;  3d  Monday  October. 

2d  Monday  May,  September,  and  January. 

2d  Monday  February  ;  4th  Monday  May,  August,  and  Novem- 
ber. 

3d  Monday  March,  July,  and  November. 

1st  Monday  January,  May,  and  September. 

2d  Monday  February,  June,  arid  October. 

2d  Monday  March.  June,  and  November. 

1st  Monday  April ;  2d  Monday  July ;  4th  Monday  October. 

3d  Monday  January,  May,  and  September.    At  Lake  City— 2d 
Monday  July. 

3d  Monday  January,  May,  and  September. 

3d  Monday  February,  June,  and  October. 

2d  Monday  January,  April,  and  September. 

:th  Monday  February  ;  3d  Monday  June  ;  2d  Monday  Novem- 
ber. 

:th  Monday  October ;  4th  Monday  January ;  1st  Monday  May. 

2d  Monday  April,  August,  and  December. 

3d  Monday  January,  May,  and  December. 

1st  ?Jonuay  March  and  July  ;  3d  Monday  November. 
1st  Monday  March,  July,  and  November. 

3d  Monday  January,  May,  and  September. 

3d  Monday  January ;  3d  Monday  May  ;  1st  Monday  October. 


34 


CALIFORNIA. 


[Part  3. 


COUNTY  AND  PROBATE  COURT£ 

The  terms  of  these  Courts  are  held  at  the  county  seat  of  each 
county,  as  follows : 


COUNTY  COURTS. 


PROBATE  COURTS. 


Alameda 

Alpine 

Amador 

Butte 

Calaveras 
Colusa  . . . 
Contra  Costa. . 
Del  Norte  . . 
El  Dorado.. 

Fresno 

Humboldt.. 

Inyo 

Kern 

Klamath 

Lake 

Lassen 

Los  Angeles. . . 

Marin 

Mariposa 

Meudocino 

Merced 

Modoc 

Mono 

Monterey 

Napa  

Nevada 


Placer 

Plumas 

Sacramento 

San  Benito 

San  Bernardino 

San  Diego 

San  Francisco . . 

San  Joaquiu 

San  Luis  Obispo  1st  M 

SanMateo 

Santa  Barbara 
Santa  Clara. . . 
Santa  Cruz. . . 
Shasta  . . . 


mber  Same  a 


1st  Monday  Jan.,  Apr.,  July  ;  3d  Monday  Sept. 

1st  Monday  February,  June,  October 

1st  Monday  February,  May,  August,  November 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  March,  June,  September,  Dec 

1st  Monday  Jan.,  April  ;  3d  Monday  July,  Oct. 

1st  Monday  March,  August,  November 

1st  Monday  April,  July,  October '. 

•2d  Monday  March,  June,  September,  Dec.    . . . 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  Jan.,  Mch  ,  May,  July,  Sept.,  Nov. 

1st  Monday  April,  July,  October  

1st  Monday  January,  April,  July,  October 

1st  Monday  February,  May,  August,  November 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

3d  Monday  March,  June,  September,  December  Sa 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  Mai'ch,  June,  September,  December 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  February,  June,  October. . 

1st  Monday  January,  May,  September 

1st  Monday  March,  May,  July,  Sept.,  Nov 

1st  Monday  Mch.,  Sept.,  Dec. ;  3d  M. 

1st  Monday  February,  May,  August.  November 

Sessions  may  be  held  at  Truckee  at  the  discre- 
tion of  the  Judge. 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  March,  June,  September,  Dec 

1st  Monday  January,  April,  July,  October 

1st  Monday  February,  May  ;  3d  Monday  Aug- 
ust ;  1st  Monday  November 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  Jan.,  Mch.,  May,  J\ily,  Sept.,  Nov. 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 
,t  Monday  March,  June ;  3d  Monday  August ; 
1st  Monday  December 

2d  Monday  March,  June,  September,  Dec 

1st  Monday  March,  June,  September,  Dec . 

Monday  February,  May,  August,  Novem" 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

1st  Monday  January,  May,  September 


Same  as  County  Court. 
Same  as  County  Court. 
August,  November  Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
2d  Jan.,  April,  July,  Oct. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 
County  Court. 
Same  as  County  Court, 
me  as  County  Court. 
Same  as  County  Court. 


,'cember  Same  as  County  Court. 
Same  as  County  Court. 
When  necessity  requires. 
Same  as  County  Court. 
1st  Monday  each  month, 
nday  June  Same  as  County  Court. 
1st  Monday  each  month. 


Same  as  County  Court. 
Same  as  County  Court. 
Same  as  County  Court. 

1st  Monday  of  each  month. 
4th  Monday  of  each  month. 
Same  as  County  Court. 
1st  Monday  of  each  month. 
Same  as  County  Court. 


Sierra 

Siskiyou 

Siskiyou , 

Solano 

Sonoma 

Stanislaus 

Sutter 

Tehama 

Trinity 

Tulare 

Tuolumne  — 

Ventura  

Yolo 

Yuba 


3d  Monday  April,  June,  Sept.;  2d  Monday  Dec. 
1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 

At  Lake  City  2d  Monday  of  July 

3d  Monday  April,  August,  December 

1st  Monday  January,  April.  July,  October 

1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 
1st  Monday  January,  April,  July,  October 
1st  Monday  Jan.,  Mch.,  May,  July,  Sept.,  Nov. 
1st  Monday  J>m.,  Mch.,  May,  July.  Sept.,  Nov. 
1st  Monday  Mch.,  June,  September,  December 

1st  Monday  January,  May,  September 

1st  Monday  February,  July,  October 

1st  Monday  •  auuary,  April,  July,  October 

1st  Monday  Jan.,  April,  July ;  2d  Monday  Oct. 


Same  as  County  Court. 

Same  as  County  Court. 

ame  as  County  Court. 

ber  1st  Monday  of  each  month. 

Same  as  County  Court. 

1st  Monday  February,  April. 

June,  August,  Oct.,  Dec. 
1st  Monday  of  each  month. 
Same  as  County  Court. 


Same  as  County  Court, 
st  Monday  of  each  month. 
Same  as  County  Court. 
1st  Monday  of  each  month. 
Same  as  County  Court. 
Same  as  County  Court, 
me  as  County  Court. 
4th  Monday  of  each  month. 
When  necessity  requires. 
Same  as  County  Court. 
1st  Monday  of  each  month. 


Chap.  3.]  CALIFORNIA.  35 


JUSTICES'  COURTS. 

• 

These  Courts  may  be  held  at  any  place  selected  by  the  justice 
holding  the  same,  in  the  township  or  city  for  which  he  is  elected, 
and  they  are  always  open  for  the  transaction  of  business. 

THE  CIRCUIT  COURT  OP  THE  UNTIED  STATES — DISTJUCT  OF 
CALIFORNIA. 

The  regular  terms  shall  be  held  at  San  Francisco  as  follows : 
On  the  second  Monday  in  February,  July,  and  December  of 

each  year. 

The  circuit  judge  may  appoint  special  sessions  of  the   Circuit 

Court,  to  be  held  at  the  place  where  the  regular  session  is  held. 

THE  DISTRICT  COURT  OF  THE  UNITED  STATES — DISTRICT  OF 
CALIFORNIA. 

The  regular  terms  shall  be  held  at  San  Francisco  as  follows  : 
On  the  first  Monday  in  April,  on  the  second  Monday  in  August, 
and  on  the  first  Monday  in  December. 

Whenever  the  judge  fails  to  hold  -any  regular  term  thereof,  it 
shall  be  his  duty,  if  it  appears  that  the  business  of  the  Court  re- 
quires it,  to  hold  an  intermediate  term.  The  Court  is  always  open 
for  the  transaction  of  business  under  the  bankruptcy  act. 


CHAPTER   III. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  following  causes  must  be  tried  in  the  county  in 
which  the  subject  of  the  action,  or  some  part  thereof,  is  situated : 
1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest 


36  CALIFORNIA.  [Part  3. 

therein,  or  for  the  determination,  in  any  form,  of  such  right  or  in- 
terest, and  for  injuries  to  real  property. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  a  mortgage  of  real  property. 
Where  the  real  property  is  situated  partly  in  one  county  and 

partly  in  another,  the  plaintiff  may  select  either  of  the  counties, 
and  the  county  so  selected  is  the  proper  county  for  the  trial  of 
such  action. 

Actions  for  the  following  causes  must  be  tried  in  the  county 
where  the  cause  or  some  part  thereof  arose. 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  stat- 
ute, except  that  when  it  is  imposed  for  an  offense  committed  on  a 
lake,  river,  or  other  stream  of  water  situated  in  two  or  more  coun- 
ties, the  action  may  be  brought  in  any  county  bordering  on  such 
lake,  river,  or  stream,  and  opposite  to  the  place  where  the  offense 
was  committed. 

2.  Against  a  public  officer  or  person  especially   appointed   to 
execute  his  duties,  for  an  act  done  by  him  in  virtue  of  his  office, 
or  against  a  person  who,  by  his  command,  or  in  his  aid,  does  any- 
thing touching  the  duties  of  such  officer. 

Actions  against  counties  may  be  commenced  and  tried  in  any 
county  in  the  judicial  district  in  which  such  county  is  situated, 
unless  such  actions  are  between  counties,  in  which  case  they  may 
be  commenced  and  tried  in  any  county  not  a  party  thereto. 

All  other  actions  must  be  tried  in  the  county  in  which  the  defend- 
ants, or  some  of  them,  reside  at  the  commencement  of  the  action  ; 
or  if  none  of  the  defendants  reside  in  the  State,  or  if  residing  in 
this  State,  the  county  in  which  they  reside  is  unknown  to  the 
plaintiff,  the  same  may  be  tried  in  any  county  which  the  plaintiff 
may  designate  in  his  complaint ;  and  if  the  defendant  is  about  to 
depart  from  the  State,  such  action  may  be  tried  in  any  county 
where  either  of  the  parties  reside,  or  where  service  is  had. 

If  the  county  in  which  the  action  is  commenced  is  not  the  proper 
county  for  the  trial  thereof,  the  action  may,  notwithstanding,  be 
tried  therein,  unless  the  defendant,  at  the  time  he  appears  and  an- 
3\vers  or  demurs,  files  an  affidavit  of  merits,  and  demands  in  writing 
that  the  trial  be  had  in  the  proper  county. 


Chap.  8.]  CALIFORNIA.  37 

The  place  of  trial  may  be  changed  in  the  following  cases : 

1.  When  the  county    designated  in   the    complaint  is   not  the 
proper  county. 

2.  When  there  is  reason  to  believe  that   an  impartial  trial  can- 
not be  had  therein. 

3.  When  the  convenience  of  witnesses  and  the  ends  of  justice 
would  be  promoted  by  the  change. 

4.  When  from  any  cause  the  judge  is  disqualified  for  acting. 

PLACE  OP  TRIAL  OP  ACTIONS  IN  JUSTICES'  COURTS. 

1.  If  there  be  no  Justices'  Courts  for  the   township  or  city  in 
which  the  defendant  resides  :  in  any  city  or  township  of  the  county 
in  which  he  resides. 

2.  When  two  or  more  persons  are  jointly,  or  jointly  and  several- 
ly, bound  in  any  debt  or  contract,  or  otherwise  jointly  liable  in  the 
same  action,  and  reside  in  different  townships  or  different  cities  of 
the  same  county,  or  in  different  counties  :  in  the   township  or  city 
in  which  any  of  the,  persons  liable  may  reside. 

3.  In  case  of  injury  to  the  person  or  property :  in  the  town- 
ship or  city  Tfhere  the  injury  was  committed,  or  where  the  defend- 
ant resides. 

4.  If  for  the  recovery  of  personal  property,  or  the  value  thereof, 
or  damages  for  taking  or  detaining  the  same  :  in  the  township  or  city 
in  which  the  property  may  be  found,  or  in  which  the  property  was 
taken,  or  in  which  the  defendant  resides. 

5.  When  the  defendant  is  a  non-resident  of  the  county  :  in  any 
township  or  city  wherein  he  may  be  found. 

6.  When  the  defendant  is  a  non-resident  of  the  State  :  in  any 
township  or  city  in  the  State. 

7.  When  a  person  has  contracted  to  perform  an  obligation  at  a 
particular  place,  and  resides  in  another  county,  township  or  city  ;  in 
the  township  or  city  in  which  such  obligation  is  to  be  performed,  or 
in  which  he  resides  ;  and  the  township  or  city  in  which  the  obliga- 
tion is  incurred  shall  be  deemed  to  be  the  township  or  city  in  which 
it  is  to  be  performed,  unless  there  is  a  special  contract  to  the  con- 
trary. 


38  CALIFORNIA.  [Part  3. 

8.  When  the  parties  voluntarily  appear  and  plead  without  sum- 
mons :  in  any  township  or  city  in  the  State. 

9.  In  all  other  cases :  in  the  township  or  city  in  which  the  de- 
fendant resides. 

The  place  of  trial  may  be  changed  in  the  following  cases  : 

1.  When  it  appears  to  the  satisfaction  of   the  justice  before 
whom  the  action  is  pending,  by  affidavit  of  either  party,  that  such 
justice  is  a  material  witness  for  either  party. 

2.  When  either  party  makes  and  files  an  affidavit  that  he  be- 
lieves that  he  cannot  have  a  fair  and  impartial  trial  before  such 
justice,  by  reason  of  the  interest,  prejudice,  or  bias  of  the  justice. 

3.  When  a  jury  has  been  demanded,  and  either  party  makes 
and  files  an  affidavit  that  he  cannot  have  a  fair  and  impartial  trial 
on  account  of  the  bias  or  prejudice  of  the  citizens  of  the  township  or 
city  against  him. 

4.  When  from  any  cause  the  justice  is  disqualified  from  acting. 

5.  When  the  justice  is  sick  or  unable  to  act. 

PROBATE  COURT.          • 

In  what  county  wills  must  be  proved  and  letters  testamentary  or 
of  administration  granted: 

1.  In  the  county  of  which  the  deceased  was  a  resident  at  the 
time  of  his  death,  in  whatever  place  he  may  have  died. 

2.  In  the  county  in  which  the   deceased  may  have  died,  leaving 
estate  therein,  he  not  being  a  resident  of  the  State. 

3.  In  the  county  in  which  any  part  of  the  estate  may  be,  the 
deceased  having  died  out  of  the  State  and  not  resident  therein  at 
the  time  of  his  death. 

4.  In  the  county  in  which  any  part  of  the  estate  may  be,  the 
deceased  not  being  a  resident  of  the   State,  and  not  leaving  estate 
in  the  county  in  which  he  died. 

5.  In  all  other  cases,  in  the  county  where  application  for  letters 
is  first  made. 


Chap.  4.]  CALIFORNIA.  39 

/ 

CHAPTER  IV. 

LIMITATION  OF  CIVIL  ACTIONS. 

The  periods  prescribed  for  the   commencement   of  civil   actions 

are  as  follows : 

^  Within  'five  years  : 

1.  An  action  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States  or  of  any  State  within  the  United  States. 

2.  An  action  for  mesne  profits  of  real  property. 

Within  four  yeavs : 

An  action  upon  any  contract,  obligation,  or  liability  founded 
upon  an  instrument  in  writing  executed  in  this  State,  (promissory 
notes  included). 

Within   three  years : 

1.  An  action  upon  a  liability  created  by  statute,  other   than   a 
penalty  or  forfeiture. 

2.  An  action  for  trespass  upon  real  property. 

3.  An  action  for  taking,  detaining,  or  injuring   any  goods  or 
chattels,  including  actions   for   the   specific    recovery  of  personal 
property. 

4.  An  action  for  relief  on  the  ground  of  fraud  or   mistake.     In 
this  case  the  time  begins  to  run  from  the  discovery,  by  the  ag- 
grieved party,  of  the  facts  constituting  the  fraud  or  mistake. 

Within  two  years  : 

1.  An    action   upon    a   contract,   obligation,  or   liability,     not 
founded  upon  an  instrument  of  writing,  made  within  or  out  of  this 
State,  (accounts  included). 

2.  An  action  founded  upon  an   instrument  of  writing   executed 
out  of  this  State,  (promissory  notes  included). 

3.  An  action  against  a  sheriff,    coroner,   or  constable,  upon   a 
liability  incurred  by  the  doing  of  an   act   in   his  official  capacity, 
and  in  virtue  of  his  office,  or  by  the    omission  of  an  official   duty, 
including  the  non-payment  of  money  collected  upon  an  execution — 
except  for  an  escape. 


40  CALIFORNIA.  [Part  3. 

4.  An  action  to  recover  damages  for  the  death  of  one  caused  by 
the  wrongful  act  or  neglect  of  another. 

Within  one  year : 

1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  where 
the  action  is  given  to  an  individual,  or  to  an  individual  and  the 
State,  except  where  the  statute  imposing  it  prescribes  a  different 
limitation. 

2.  An  action 'for  libel,  slander,  assault,  battery,  false  imprison- 
ment, or  seduction.  • 

3.  An  action  against  a  sheriff  or  other  officer  for  the  escape  of  a 
prisoner  arrested  or  imprisoned  on  civil  process. 

4.  An  action  against  a  municipal  corporation  for  damages  for 
injuries  to  property  caused  by  a  mob  or  riot. 

Within  six  months  : 
An  action  against  an  officer,  or  officer  de  facto — 

1.  To  recover  any  goods,  wares,  merchandise,  or  other,  property, 
seized  by  such  officer  in  his  official  capacity  as  tax  collector,  or  to 
recover  the  price  or  value  of  any  goocte,  wares,  merchandise,  or 
other  personal  property  so  seized,  or  for  damages  for  the  seizure, 
detention,  sale  of,  or  injury  to  any  goods,  wares,  merchandise,  or 
other  personal  property  seized,  or  for  damages  done  to  any  person 
or  property  in  making  any  such  seizure. 

2.  To  recover  stock  sold  for  a  delinquent  assessment,  upon  the 
ground  of  irregularity  in  the   assessment,  or  irregularity  or  defect 
of  the  notice  of  sale,  or  defect  or  irregularity  in  the  sale. 

No  limitation  : 

To  actions  for  the  recovery  of  money  or  other  property  depos- 
ited with  any.  bank,  banker,  trust  company,  or  savings  and  loan 

society. 

General  provisions : 

The  period  of  limitation  begins  to  run  from  the  time  the  cause 
of  action  accrues,  or  in  other  words,  from  the  time  when  suit  can 
be  brought. 

A  partial  payment  of  an  amount  due  under  an  agreement  in 
writing,  (promissory  notes  included)  or  under  an  agreement  not 
in  writing,  (book  accounts  included)  does  not  prevent  the  statute 


Chap.  4.1  CALIFORNIA.  41 

running  ;  but  where  a  balance  is  due  upon  a  mutual,  open,  and  cur 
rent  account,  where  there  have  been  reciprocal  demands  between 
the  parties,  the  statute  begins  to  run  from  the  last  item  proved  in 
the  account  on  either  side. 

If  when  the  cause  of  action  accrues  against  a  person,  he  is  out 
of  the  State,  the  action  may  be  commenced  within  the  time  above 
limited,  after  his  return  to  the  State,  and  if,  after  the  cause  of 
action  accrues,  he  departs  from  the  State,  the  time  of  his  absence  is 
not  part  of  the  time  limited  for  the  commencement  of  the  action. 

If  a  person  entitled  to  bring  an  action  be,  at  the  time  the  cause 
of  action  accrues,  either  within  the  age  of  majority,  insane,  im- 
prisoned on  a  criminal  charge,  or  in  execution  under  the  sentence 
of  a  Criminal  Court  for  a  term  less  than  for  life,  or  a  married 
woman,  and  her  husband  be  a  necessary  party  with  her  in  com- 
mencing such  action,  the  time  of  such  disability  is  not  a  part  of 
the  time  limited.  , 

If  a  person  entitled  to  bring  an  action  die  before  the  expiration 
of  the  time  limited  for  the  commencement  thereof,  and  the  cause 
of  action  survive,  an  action  may  be  commenced  by  his  representa- 
tives, after  the  expiration  of  that  time,  and  within  six  months  from 
his  death.  If  a  person,  against  whom  an  action  may  be  brought, 
die  before  the  expiration  of  the  time,  limited  for  the  commence- 
ment thereof,  and  the  cause  of  action  survive,  an  action  may  be 
commenced  against  his  representatives  after  the  expiration  of  that 
time,  and  within  one  year  after  the  issuing  of  letters  testamentary 
or  of  administration. 

When  a  person  is  an  alien  subject,  or  citizen  of  a  country  at 
war  with  the  United  States,  the  time  of  the  continuance  of  the 
war  is  not  part  of  the  period  limited  for  the  commencement  of  the 
action. 

When  the  commencement  of  an  action  is  stayed  by  injunction 
or  statutory  prohibition,  the  time  of  the  continuance  of  the  in- 
junction or  prohibition  is  not  part  of  the  time  limited  for  the  com- 
mencement of  the  action. 

When  a  cause  of  action  has  arisen  in  another  State,  or  in  a  for- 
eign country,  and  by  the  laws  thereof  an  action  thereon  cannot 
there  be  maintained  against  a  person  by  reason  of  the  lapse  of 


42  CALIFORNIA.  [Part  3. 

time,  an  action  thereon  shall  not  be  maintained  against  him  in  this 
State,  except  in  favor  of  one  who  has  been  a  citizen  of  this  State, 
and  who  has  held  the  cause  of  action  from  the  time  it  accrued. 

No  acknowledgment  or  promise  is  sufficient  evidence  of  a  new 
or  continuing  contract,  by  which  to  take  the  case  out  of  the  opera- 
tion of  the  statute,  unless  the  same  is  contained  in  some  writing, 
signed  bj  the  party  to  be  charged  thereby. 


CHAPTER  V. 

PARTIES  TO   SUITS— COMMENCEMENT  OF  ACTIONS. 

Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  in  the  case  of  an  executor,  or  administrator,  or 
trustee  of  an  express  trust,  (including  a  person  with  whom,  or  in 
whose  name,  a  contract  is  made  for  the  benefit  of  another)  or  a 
person  expressly  authorized  by  statute',  who  may  sue  without 
joining  with  him  the  person  or  persons  for  whose  benefit  the  action 
is  brought. 

In  the  case  of  an  assignment  of  a  right  to  recover  money  or 
other  personal  property  by  a  judicial  proceeding,  the  action  by 
the  assignee  is  without  prejudice  to  any  set-off  or  other  defense  ex- 
isting at  the  time  of,  or  before  notice  of,  the  assignment ;  but  this 
does  not  apply  to  a  negotiable  promissory  note  or  bill  of  exchange, 
transferred,  in  good  faith  and  upon  good  consideration,  before  ma- 
turity. 

Persons  severally  liable  upon  the  same  obligation  or  instrument, 
including  the  parties  to  bills  of  exchange  and  promissory  notes, 
and  sureties  on  the  same  or  separate  instruments,  may  all  or  any 
of  them  be  included  in  the  same  action,  at  the  option  of  the  plaintiff. 

Civil  actions  in  the  Courts  of  this  State  are  commenced  by  filing 


Chap.  5.]  CALIFORNIA,  43 

a  complaint.  In  the  Justices'  Courts,  by  filing  a  complaint  and 
issuing  a  summons  thereon,  or  by  the  voluntary  appearance  and 
pleading  of  the  parties. 

The  plaintiff  may  have  summons  issued  any  time  within  one  year 
after  the  complaint  is  filed  with  the  clerk  or  justice. 

In  the  District  Courts  the  defendant  is  allowed  ten  days  after 
the  service  of  summons  and  complaint  to  appear  and  answer  the 
complaint,  where  service  is  made  within  the  county  in  which  the 
action  is  brought ;  twenty  days  if  served  out  of  the  county  but  in 
the  district  in  which  the  action  is  brought,  and  forty  days  if  served 
elsewhere. 

In  the  District  Courts,  the  summons  and  copy  of  complaint  may 
be  served  by  the  sheriff  of  the  county  where  defendant  may  be 
found,  or  by  any  other  person  over  the  age  of  eighteen,  not  a  party 
to  the  action. 

On  whom  summons  to  be  served: 

1.  If  the  suit  is  against  a  corporation  formed  under  the  laws  of 
this  State  :  the  president  or  other  head  of  the  corporation,  secre- 
tary, cashier,  or  managing  agent  thereof. 

2.  If  against  a  foreign  corporation,  or  a  non-resident  joint-stock 
company  or  association,  doing  business  and  having  a  managing  or 
business  agent,  cashier,  or  secretary  within  this  State  :  the  agent, 
cashier,'  or  secretary. 

3.  If  against  a  minor  under  the  age  of  fourteen  years,  residing 
within   this    State :  such   minor   personally,  and  also   his  father, 
mother,  or  guardian ;  or  if  there  be  none  within  this  State,  then 
any  person  having  the  care  or  control  of  such  minor,  or  with  whom 
he  resides,  or  in  whose  service  he  is  emploped. 

4.  If  against  a  person,  residing  within  this  State,  who  has  been 
judicially  declared  to  be  of  unsound  mind,  or  incapable  of  conduct- 
ing his  own  affairs,  and  for  whom  a  guardian  has  been  appointed : 
such  person,  and  also  his  guardian. 

5.  If  against  a  county,  city,  or  town  :  the  president  of  the  board 
of  supervisors,  president  of  the  council,  or  trustees,  or  other  head 
of  the  legislative  department  thereof. 

6.  In  all  other  cases  the  defendant  must  be  served  personally. 


44  CALIFORNIA.  [Part  3. 

Service  by  publication: 

When  the  person  on  whom  the  service  is  to  be  made  resides  out 
of  tne  State,  or  has  departed  from  the  State,  or  cannot,  after  due 
diligence,  be  found  within  the  State,  or  conceals  himself  to  avoid 
service,  or  is  a  foreign  corporation  having  no  managing  or  business 
agent,  cashier,  or  secretary  within  the  State,  and  the  fact  appears 
by  affidavit  to  the  satisfaction  of  the  Court,  or  a  judge  thereof,  or 
a  county  judge,  and  it  also  appears  by  such  affidavit,  or  by  the 
verified  complaint  on  file,  that  a  cause  of  action  exists  against  the 
defendant  in  respect  to  whom  the  service  is  to  be  made,  or  that  he 
is  a  necessary  or  proper  party  to  the  action,  such  Court  or  judge 
may  make  an  order  that  the  service  be  made  by  the  publication  of 
the  summons. 

The  order  must  direct  the  publication  to  be  made  in  a  news- 
paper, to  be  designated  as  most  likely  to  give  notice  to  the  person 
to  be  served,  and  for  such  length  of  time  as  may  be  deemed  reason- 
able, at  least  once  a  week  ;  but  publication  against  a  defendant  re- 
siding out  of  the  State,  or  absent  therefrom,  must  not  be  less  than 
two  months.  In  case  of  publication,  where  the  residence  of  a  non- 
resident or  absent  defendant  is  known,  the  Court  or  a  judge  must 
direct  a  copy  of  the  summons  and  complaint  to  be  forthwith  de- 
posited in  the  postoffice,  directed  to  the  person  to  be  served,  at 
his  place  of  residence.  When  publication  is  ordered,  personal 
service  of  a  copy  of  the  summons  and  complaint  out  of  the  State 
is  equivalent  to  publication  and  deposit  in  the  postoffice.  In 
either  case,  the  service  of  the  summons  is  complete  at  the  expira- 
tion of  the  time  prescribed  by  the  order  for  publication. 

PROVISIONS  IN  JUSTICES'  COURTS. 

In  Justices'  Courts,  the  time  for  the  appearance  of  the  defend- 
ant must  be  set  forth  in  the  summons,  and  must  be  as  follows  : — 

1.  Forthwith,  if  an  order  of  arrest  is  indorsed  upon  the  sum- 
mons. 

2.  Not  less  than  twenty  nor  more  than  thirty  days  from  its 
date,  if  the  defendant  is  not  a  resident  of  the  county  in  which  the 
action  is  brought. 


Chap.  5.]  CALIFORNIA.  45 

3.  In  all  other  cases,  not  less  than  three  nor  more  than  twelve 
days  from  its  date. 

On  whom  summons  to  be  served  in  Justice  Court  actions  :  see 
rule  for  service  in  District  Courts. 

/Service  by  publication : 

Rule  in  District  Courts  applicable  to  Justices'  Courts. 

In  Justice  Court  actions  the  summons  cannot  be  served  out  of 
the  county  of  the  justice  before  whom  the  action  is  brought,  ex- 
cept when  the  action  is  brought  upon  a  joint  contract  or  obligation 
of  two  or  more  persons  who  reside  in  different  counties,  and  the 
summons  has  been  served  upon  the  defendant  resident  of  the 
county,  in  which  case  the  summons  may  be  served  upon  the  other 
defendants  out  of  the  county ;  and  except  also  when  an  action  is 
brought  against  a  party  who  has  contracted  to  perform  an  obliga- 
tion at  a  particular  place,  and  resides  in  a  different  county,  in 
which  case  summons  may  be  served  in  the  county  where  he  re- 
sides. When  the  defendant  resides  in  the  county,  the  summons 
cannot  be  served  within  two  days  of  the  time  fixed  for  the  ap- 
pearance of  the  defendant ;  and  when  he  resides  out  of  the 
county  and  the  summons  is  served  out  of  the  county,  the  sum- 
mons cannot  be  served  within  twenty  days  of  such  time. 

The  justice  may,  within  a  year  from  the  date  of  filing  the  com- 
plaint, issue  as  many  alias  summons  as  may  be  demanded  by  the 
plaintiff. 

The  summons  in  a  Justice  Court  action  may  be  served  by  a 
sheriff  or  constable  of  any  of  the  counties  of  this  State,  or  by 
any  male  resident  over  the  age  of  twenty-one  years,  not  a  party  to 
the  suit,  and  within  the  county  where  the  action  is  brought,  or  it 
may  be  served  by  publication.  When  a  summons  is  issued  by  a 
justice  of  the  peace  for  service  out  of  the  county  in  which  it  was 
issued,  the  summons  shall  have  attached  to  it  a  certificate,  under 
seal  by  the  county  clerk  of  such  county,  to  the  effect  that  the 
person  issuing  the  same  was  an  acting  justice  of  the  peace  at  the 
date  of  the  summons. 


46  CALIFORNIA.  [Part  3. 


CHAPTER  VI. 

FORM  OF  CIVIL  ACTIONS— PLEADINGS. 

There  is  in  this  State  but  one  form  of  civil  actions  for  the  en- 
forcement or  protection  of  private  rights  and  the  redress  or 
prevention  of  private  wrongs. 

In  such  action  the  party  complaining  is  known  as  the  plaintiff, 
and  the  adverse  party  as  the  defendant. 

PLEADINGS. 

Pleadings  are  the  formal  allegations  by  the  parties  of  their  res- 
pective claims  and  defenses,  for  the  judgment  of  the  Court. 
The  only  pleadings  allowed  on  the  part  of  the  plaintiff  are — 

1.  The  complaint. 

2.  The  demurrer  to  the  answer. 

3.  Demurrer  and  answer  to  a  cross-complaint. 
Those  allowed  on  the  part  of  the  defendant  are — 

1.  The  demurrer  to  the  complaint. 

2.  The  answer. 

3.  Cross-complaint. 

A  demurrer  raises  an  issue  of  law. 

An  answer  raises  an  issue  of  fact. 

An  issue  of  law  is  tried  by  the  Court. 
1    An  issue  of  fact  is  tried  by  a  jury,  unless  a  jury  trial  is  waived. 

The  complaint  must  contain  a  concise  statement,  in  writing,  of 
the  facts  constituting  the  cause  of  action. 

In  the  Justice  Court  a  copy  of  the  account,  note,  bill,  bond,  or 
instrument  upon  which  the  action  is  based,  is  sufficient. 

The  plaintiff  may  unite  several  causes  of  action  in  the  same 
complaint  where  they  all  arise  out  of — 

1.  Contracts,  express  or  implied. 

2.  Claims  to  recover  specific   real   property,  with  or  without 
damages  for  the  withholding  thereof,  or  for  waste  committed  there- 
on, and  the  rents  and  profits  of  the  same 


Chap.  0.]  CALIFORNIA.  47 

3.  Claims  to  recover  specific  personal  property,  with  or  without 
damages  for  the  withholding  thereof. 

4.  Claims  against  a  trustee  by  virtue  of  a  contract  or  by  opera- 
tion of  law. 

5.  Injuries  to  character. 

6.  Injuries  to  person. 

7.  Injuries  to  property. 

The  causes  of  action  so  united  must  all  belong  to  one  only  of 
these  classes,  and  must  affect  all  the  parties  to  the  action,  and  not 
require  different  places  of  trial,  and  must  be  separately  stated. 

The  defendant  may  demur  to  the  complaint  within  the  time  re- 
quired in  the  summons  to  answer,  when  it  appears  upon  the  face 
thereof,  either — 

1.  That  the  Court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant, or  the  subject  of  the  action  ;  or, 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue ;  or, 

3.  That  there  is  another  action  pending  between  the  same  par- 
ties for  the  same  cause ;  or, 

4.  That  there  is  a  defect  or  misjoinder  of  parties  plaintiff  or  de- 
fendant ;  or, 

5.  That  several  causes  of  action  have  been  improperly  united  ;  or 

6.  That  the  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action  ;  or, 

7.  That  the  complaint  is  ambiguous,  unintelligible,  or  uncertain. 
Unless  the  demurrer  distinctly  specify  the  grounds  upon  which 

any  of  the  objections  to  the  complaint  are  taken,  it  may  be  dis- 
regarded. 

The  defendant  may  demur  and  answer  at  the  same  time. 

The  answer  of  the  defendant  shall  contain — 

1.  A  general  or  specific  denial  of  the  material  allegations  of  the 
complaint  controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counter  claim.     If  the  complaint  be  verified,  the  denial  of  each 
allegation  controverted  must  be  specific,  and  be  made  positively, 
or  according  to  the  information  and  belief  of  the  defendant.    If  the 
defendant  has  no  information  or  belief  upon  the  subject  sufficient  to 
enable  him  to  answer  an  allegation  of  the  complaint,  he  may  so 


48  CALIFORNIA.  [Part  3. 

state  in  his  answer,  and  place  his  denial  on  that  ground.  If  the 
complaint  be  not  verified,  a  general  denial  is  sufficient,  but  only 
puts  in  issue  the  material  allegations  of  the  complaint. 

The  counter-claim  above  mentioned  must  be  one  existing  in  favor 
of  a  defendant,  and  against  a  plaintiff,  between  whom  a  several 
judgment  might  be  had  in  the  action,  and  arising  out  of  one  of 
the  following  causes  of  action  : 

1.  A  cause  of  action  arising  out  of  the  transaction  set  forth  in 
the  complaint  as  the  foundation  of  the  plaintiffs  claim,  or  connected 
with  the  subject  of  the  action. 

2.  In  an  action  arising  upon  contract ;  any  other  cause  of  action 
arising  upon  contract,  and  existing  at  the  commencement  of  the 
action. 

If  the  defendant  omit  to  set  up  a  counter-claim  arising  out  of 
the  transaction  set  forth  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,  or  connected  with  the  subject  of  the  action,  neither 
he  nor  his  assignee  can  afterwards  maintain  an  action 'against  the 
plaintiff  therefor. 

When  cross-demands  have  existed  between  persons  under  such 
circumstances  that,  if  one  had  brought  an  action  against  the  other, 
a  counter-claim  could  have  been  set  up,  the  two  demands  shall  be 
deemed  compensated,  so  far  as  they  equal  each  other,  and  neither 
can  be  deprived  of  the  benefit  thereof  by  the  assignment  or  death 
of  the  other. 

The  plaintiff  may,  within  the  same  length  of  time  after  the  ser- 
vice of  the  answer  as  the  defendant  is  allowed  to  answer  after 
service  of  summons,  demur  to  the  answer  of  the  defendant,  or  to 
one  or  more  of  the  several  defenses  or  counter-claims  set  up  in  the 
answer. 

The  demurrer  may  be  taken  upon  one  or  more  of  the  following 
grounds : 

1.  That  several  causes  of  counter-claim  have  been  improperly 
joined. 

2.  That  the  answer  does  not  state  facts  sufficient  to  constitute  a 
defense  or  counter  claim. 

3.  That  the  answer  is  ambiguous,  unintelligible,  or  uncertain. 


Chap.  6.]  CALIFORNIA.  49 

VERIFICATION  OF  PLEADINGS. 

Every  pleading  must  be  subscribed  by  the  party  or  his  attor- 
ney ;  and  when  the  complaint  is  verified,  the  answer  must  be  veri- 
fied, unless  an  admission  of  the  truth  of  the  complaint  might  sub- 
ject the  party  to  a  criminal  prosecution,  or  unless  an  officer  of  the 
State  in  his  official  capacity  is  defendant.  In  all  cases  of  the 
verification  of  a  pleading,  the  affidavit  of  the  party  must  state  that 
the  same  is  true  of  his  own  knowledge,  except  as  to  the  matters 
which  are  therein  stated  on  his  information  or  belief,  and  as  to 
those  matters  that  he  believes  it  to  be  true ;  and  where  a 
pleading  is  verified  it  must  be  by  the  affidavit  of  a  party,  unless 
the  parties  are  absent  from  the  county  where  the  attorney  resides, 
or  from  some  cause  unable  to  verify  it,  or  the  facts  are  within  the 
knowledge  of  his  attorney  or  other  person  verifying  the  same. 
When  the  pleading  is  verified  by  the  attorney,  or  any  other  per- 
son except  one  of  the  parties,  he  must  set  forth  in  the  affidavit  the 
reasons  why  it  is  not  made  by  one  of  the  parties.  When  a  cor- 
poration is  a  party  the  verification  can  be  made  by  an  officer 
thereof. 

PROVISIONS  IN  JUSTICES'  COURTS. 

Pleadings  in  Justices'  Courts  are  not  required  to  be  in  any  par- 
ticular form,  but  must  be  such  as  to  enable  a  person  of  common 
understanding  to  know  what  is  intended. 

May — except  the  complaint — be  oral  or  in  writing. 

Not  to  be  verified. 

If  in  writing,  must  be  filed  with  the  justice. 

If  oral,  an  entry  of  their  substance  must  be  made  in  the  docket. 

The  defendant  may,  at  any  time  before  answering,  demur  to  the 
complaint. 

The  answer  may  contain  a  denial  of  any  or  all  of  the  material 
facts  stated  in  the  complaint,  which  the  defendant  believes  to  be 
untrue,  and  also  a  statement,  in  a  plain  and  direct  manner,  of  any 
other  facts  constituting  a  defense  or  counter  claim,  upon  which  an 
action  might  be  brought  by  the  defendant  against  the  plaintiff  in  a 
Justice's  Court. 
4 


50  CALIFORNIA.  [Part  3. 

If  the  defendant  omit  to  set  up  a  counter  claim  in  the  cases 
just  mentioned,  neither  he  nor  his  assignee  can  afterwards  maintain 
an  action  against  the  plaintiff  therefor. 

When  the  answer  contains  new  matter  in  avoidance,  or  con- 
stituting a  defense  or  a  counter  claim,  the  plaintiff  may,  at  any 
time  before  the  trial,  demur  to  the  same  for  insufficiency,  stating 
therein  the  grounds  of  such  demurrer. 

The  proceedings  on  demurrer  are  as  follows : 

1.  If  the  demurrer  to  the  complaint  is  sustained,  the  plaintiff 
may   within   such   time,  not    exceeding  two  days,  as   the    Court 
allows,  amend  his  complaint. 

2.  If  the  demurrer  to  the  complaint  is  overruled,  the  defendant 
may  answer  forthwith. 

3.  If  the  demurrer  to  an  answer  is  sustained,  the  defendant  may 
amend  his  answer  within  such  time,  not  exceeding  two  days,  as  the 
Court  may  allow. 

4.  If  the  demurrer  to  "an  answer  is  overruled,  the  action  must 
proceed  as  if  no  demurrer  had  been  interposed. 

Either  party  may,  at  any  time  before  the  conclusion  of  the  trial, 
amend  any  pleading ;  but  if  the  amendment  is  made  after  the  issue, 
and  it  appears  to  the  satisfaction  of  the  Court,  by  oath,  that  an  ad- 
journment is  necessary  to  the  adverse  party  in  consequence  of  such 
amendment,  an  adjournment  .must  be  granted.  The  Court  may 
also,  in  its  discretion,  when  an  adjournment  be  rendered  necessary, 
require  as  a  condition  to  the  allowance  of  such  amendment,  made 
after  issue  joined,  the  payment  of  costs  to  the  adverse  party,  to  be 
fixed  by  the  Court,  not  exceeding  twenty  dollars.  The  Court  may 
also,  on  such  terms  as  may  be  just,  and  on  payment  of  costs,  relieve 
a  party  from  a  judgment  by  default  taken  against  him  by  his  mis- 
take, inadvertence,  surprise,  or  excusable  neglect ;  but  the  applica- 
tion for  such  relief  must  be  made  within  ten  days  after  the  entry 
of  the  judgment,  and  upon  an  affidavit  showing  good  cause  there- 
for. 

When  a  pleading  is  amended,  the  adverse  party  may  answer  or 
demur  to  it  within  such  time,  not  exceeding  two  days,  as  the  Court 
may  allow. 


Chap.  7.]  CALIFORNIA.  51 


CHAPTER  VII. 

ATTACHMENTS. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterwards,  may  have  the  property  of  the  defendant  attached  as 
security  for  the  satisfaction  of  any  judgment  that  may  be  recovered, 
unless  the  defendant  gives  security  to  pay  such  judgment,  in  the 
following  cases  : 

1.  In  an  action  upon  a  contract,    express  or  implied,  for  the 
direct  payment  of  money,  where  the  contract  is  made  or  is  payable 
in  this  State,  and  is  not  secured  by  any  mortgage  or  lien  upon 
real  or  personal  property,  or  any  pledge  of  personal  property  ;  or 
if  originally  so  secured,  such  security  has,  without  any  act  of  the 
plaintiff,  or  the  person  to  whom  the  security  was  given,  become 
valueless. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a 
defendant  not  residing  in  this  State. 

In  Justices'  Courts,  the  writ  to  attach  the  property  of  the  de- 
fendant must  be  issued  at  the  time  'of  or  after  issuing  summons, 
and  before  answer. 

Before  issuing  the  writ  of  attachment,  the  clerk  of  the  Court  or 
justice  must  require  an  affidavit  by  or  on  behalf  of  the  plaintiff, 
showing : 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the 
amount  of  such  indebtedness,  over  and  above  all  legal  set-offs  or 
counter-claims)    upon  a  contract,    express    or    implied,   for    the 
direct  payment  of  money,  and  that  such  contract  was  made  or  is 
payable  in  this  State,  and  that  the  payment  of  the  same  has  not 
been  secured  by  any  mortgage  or  lien  upon  real  or  personal  prop- 
erty, or  any  pledge  of  personal  property  ;  or  if  originally  so  secured, 
that  such  security  has,  without  any  act  of  the  plaintiff,  or  the  person 
to  whom  the  security  was  given,  become  valueless  ;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the 
'amount  of  such  indebtedness  over  and  above  all  legal  set-offs,  or 


52  CALIFORNIA.  [Part.  3. 

counter-claims)  and  that  the  defendant  is  a  non-resident  of  the 
State  ;  and, 

3.  That  the  attachment  is  not  sought  and  the  action  is  not  pros- 
ecuted to  hinder,  delay,  or  defraud  any  creditor  of  the  defendant. 

The  clerk  or  justice  must  also  require,  before  issuing  the  writ, 
a  written  undertaking  on  the  part  of  the  plaintiff,  (in  the  District 
Court,  in  a  sum  not  less  than  two  hundred  dollars,  and  not  exceed- 
ing the  amount  claimed  by  the  plaintiff;  and  in  the  Justice's  Court, 
in  a  sum  not  less  than  fifty  dollars,  and  not  more  than  three  hund- 
red dollars)  by  two  or  more  sufficient  sureties,  to  the  effect  that  if 
the  defendant  recover  judgment,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  and  all  damages  which  he  may 
sustain  by  reason  of  the  attachment,  not  exceeding  the  sum  speci- 
fied in  the  undertaking. 

The  defendant  may  except  to  the  sufficiency  of  the  sureties. 

The  writ  of  attachment  in  District  Court  actions  must  be  directed 
to  the  sheriff  of  any  county  in  which  property  of  such  defendant 
may  be ;  in  Justice  Court  actions  to  the  sheriff  of  any  county  in 
which  property  of  the  defendant  may  be,  or  to  the  sheriff  or  con- 
stable in  the  county  where  the  suit  is  brought,  and  must  require 
him  to  attach  and  safely  keep  all  the  property  of  the  defendant 
within  his  county,  not  exempt  from  execution,  or  so  much  thereof 
as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount  of 
which  must  be  stated  in  conformity  with  the  complaint,  unless  the 
defendant  give  him  security  by  the  undertaking  of  at  least  two 
sufficient  sureties,  in  an  amount  sufficient  to  satisfy  such  demand, 
besides  costs,  or  in  an  amount  equal  to  the  value  of  the  property 
which  has  been,  or  is  about  to  be,  attached.  Several  writs  may 
be  issued  at  the  same  time,  to  the  sheriffs  of  different  counties. 

The  writ  of  attachment  must  be  executed,  without  delay,  by  the 
sheriff  to  whom  it  is  directed : 

1.  Real  property,  standing  upon  the  records  of  the  county  in  the 
name  of  the  defendant,  must  be  attached  by  filing  with  the  re- 
corder of  the  county  a  copy  of  the  writ,  together  with  a  descrip- 
tion of  the  property  attached,  and  a  notice  that  it  is  attached,  and 
by  leaving  a  similar  copy  of  the  writ,  description  and  notice  with 
an  occupant  of  the  property,  if  there  is  one ;  if  not,  then  by  post- 
ing the  same  in  a  conspicuous  place  on  the  property  attached. 


Chap.  7.]  CALIFORNIA.  53 

2.  Real  property,  or  an  interest  therein,  belonging  to  the  defend- 
ant, and  held  by  any  other  person,  or  standing  on  the  records  of  the 
county  in  the  name  of  any  other  person,  must  be  attached  by  filing 
with  the  recorder  of  the  county  a  copy  of  the  writ,  together  with 
a  description  of  the  property,  and  a  notice  that  such  real  property 
and  any  interest  of  the  defendant  therein,  held  by  or  standing  in 
the  name  of  such  other  person,  (naming  him)  are   attached  ;  and 
by  leaving  with  the   occupant,  if  any,  and  with    such  other  person 
or  his  agent,  if  known  and  within  the   county,  or  at  the  residence 
of  either,  if  within  the  county,  a  copy  of  the  writ,  with  a  similar 
description  and  notice.     If  there  is  no  occupant  of  the   property, 
a  copy  of  the  writ,  together  with  such  description  and  notice,  must 
be  posted  in  a  conspicuous  place  upon  the  property.     The  recorder 
must  index  such  attachment  when  filed,  in  the  names  both  of  the 
defendant  and  of  the  person  by  whom  the   property  is  held,  or  in 
whose  name  it  stands  on  the  records. 

3.  Personal  property,  capable  of  manual  delivery,  must  be  at- 
tached by  taking  it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares  of  any  cor- 
poration or  company,  must  be  attached  by  leaving  with  the  presi- 
dent or  other  head  of  the   same,   or  the  secretary,   cashier,   or 
other  managing  agent   thereof,  a  copy  of  the  writ,   and  a  notice 
stating   that  the  stock  or  interest  of  the  defendant  is  attached,  in 
pursuance  of  such  writ. 

5.  Debts  and  credits,  and  other  personal  property  not  capable  of 
manual  delivery,  must  be  attached  by  leaving  with  the  person  own- 
ing such  debts,  or  having  in  his  possession,  or  under  his  control, 
such  credits  and  other  personal  property,  or  with  his  agent,  a  copy 
of  the  writ,  and  a  notice  that  the  debts  owing  by  him  to  the  defend- 
ant, or  the  credits  and  other  personal  property  in  his  possession  or 
under  his  control,  belonging  to  the  defendant,  are  attached  in  pur- 
suance of  such  writ.. 

Upon  receiving  information,  in  writing,  from  the  plaintiff  or  his 
attorney,  that  any  person  has  in  his  possession,  or  under  his  con- 
trol, any  credits  or  other  personal  property  belonging  to  the  de- 
fendant, or  is  owing  any  debt  to  the  defendant,  the  sheriff  must 
serve  upon  such  person  a  copy  of  the  writ,  and  a  notice  that  such 


54  CALIFORNIA.  [Part  3. 

credits  or  other  property  or  debts,  as  the  case  may  be,  are  attached 
in  pursuance  of  such  writ. 

All  persons  having  in  their  possession,  or  under  their  control, 
any  credits  or  other  personal  property  belonging  to  the  defendant, 
or  owing  any  debts  to  the  defendant  at  the  time  of  service  upon 
them  of  a  copy  of  the  writ  and  notice,  as  above  directed,  shall  be, 
unless  such  property  be  delivered  up  or  transferred,  or  such  debts 
be  paid  to  the  sheriff,  liable  to  the  plaintiff  for  the  amount  of  such 
credits,  property,  or  debts,  until  the  attachment  be  discharged,  or 
any  judgment  recovered  by  him  be  satisfied. 

Any  person  owing  debts  to  the  defendant,  or  having  in  his  pos- 
session, or  under  his  control,  any  credits  or  other  personal  property 
belonging  to  the  defendant,  may  be  required  to  attend  before  the 
Court  or  judge,  or  a  referee  appointed  by  the  Court  or  judge,  and 
be  examined  on  oath  respecting  the  same.  The  defendant  may  also 
be  required  to  attend  for  the  purpose  of  giving  information  respect- 
ing his  property,  and  may  be  examined  on  oath.  The  Court  or 
judge  may,  after  such  examination,  order  personal  property, 
capable  of  manual  delivery,  to  be  delivered  to  the  sheriff  on  such 
terms  as  may  be  just,  having  reference  to  any  liens  thereon,  or  any 
claims  against  the  same,  and  a  memorandum  to  be  given  of  all 
other  personal  property,  containing  the  amount  and  description 
thereof. 

Perishable  property  attached  must  be  sold  by  the  sheriff.  The 
proceeds,  and  other  property  attached,  must  be  retained  by  him 
to  answer  any  judgment  that  may  be  recovered  in  the  action, 
unless  sooner  subjected  to  execution  upon  another  judgment  re- 
covered previous  to  the  issuing  of  the  attachment.  Debts  and 
credits  attached  may  be  collected  by  him,  if  the  same  can  be  done 
without  suit.  The  sheriff's  receipt  is  a  sufficient  discharge  for  the 
amount  paid. 

Whenever  property  has  been  taken  by  an  officer  under  a  writ  of 
attachment,  and  it  is  made  to  appear  satisfactorily  to  the  Court,  or 
a  judge  thereof,  or  a  county  judge,  that  the  interest  of  the  parties 
to  the  action  will  be  subserved  by  a  sale  thereof,  the  Court  or  a 
judge  may  order  such  property  to  be  sold  in  the  same  manner  as 
property  is  sold  under  an  execution,  and  the  proceeds  to  be  de- 
posited in  the  Court,  to  abide  the  judgment  in  the  action. 


Chap.  7.]  CALIFORNIA.  55 

If  any  personal  property  attached  be  claimed  by  a  third  person 
as  his  property,  the  sheriff  may  summon  a  jury  of  six  men  to  try 
the  validity  of  such  claim. 

Whenever  the  defendant  has  appeared  in  the  action,  he  may, 
upon  reasonable  notice  to  the  plaintiff,  apply  to  the  Court  in  which 
the  action  is  pending,  or  to  the  judge  thereof,  or  to  a  county 
judge,  for  an  order  to  discharge  the  attachment,  wholly  or  in 
part ;  and,  upon  the  execution  of  the  undertaking  mentioned  here- 
after, an  order  may  be  made,  releasing  from  the  operation  of  the 
attachment  any  or  all  of  the  property  attached  ;  and  all  the  prop- 
erty so  released,  and  all  of  the  proceeds  of  the  sales  thereof,  must 
be  delivered  to  the  defendant,  upon  the  justification  of  the  sureties 
on  the  undertaking,  if  required  by  the  plaintiff. 

Before  making  such  order,  the  Court  or  judge  must  require  an 
undertaking  on  behalf  of  the  defendant,  by  at  least  two  sureties, 
residents  and  freeholders,  or  householders,  in  the  State,  to  the 
effect  that,  in  case  the  plaintiff  recover  judgment  in  the  action,  the 
defendant  will,  on  demand,  re-deliver  the  attached  property  so  re- 
leased to  the  proper  officer,  to  be  applied  to  the  payment  of  the 
judgment ;  or,  in  default  thereof,  that  the  defendant  and  sureties 
will,  on  demand,  pay  to  the  plaintiff  the  full  value  of  the  property 
released.  The  Court  or  judge  making  such  order  may  fix  the 
sum  for  which  the  undertaking  must  be  executed,  and  if  necessary, 
'  in  fixing  such  sum,  to  know  the  value  of  the  property  released,  the 
same  may  be  appraised  by  one  or  more  disinterested  persons,  to  be 
appointed  for  that  purpose.  The  sureties  may  be  required  to  jus- 
tify before  the  Court  or  judge,  and  the  property  cannot  be  released 
without  their  justification,  if  the  same  be  required. 

The  defendant  may  also,  at  any  time,  either  before  or  after  the 
release  of  the  attached  property,  or  before  any  attachment  shall 
have  been  actually  levied,  apply  on  motion,  upon  reasonable  notice 
to  the  plaintiff,  to  the  Court  in  which  the  action  is  brought,  or  to 
the  judge  thereof,  or  to  a  county  judge,  that  the  writ  of  attach- 
ment be  discharged,  on  the  ground  that  the  same  was  improperly  or 
irregularly  issued. 

If,  upon  such  application,  it  satisfactorily  appears  that  the  writ 
of  attachment  was  improperly  or  irregularly  issued,  it  must  be  dis- 
charged. 


56  CALIFORNIA.  [Part  3. 


CHAPTER  VIII. 

CLAIM  AND  DELIVERY   OF  PERSONAL  PROPERTY. 

The  plaintiff  in  an  action  to  recover  the  possession  of  personal 
property  may,  at  the  time  of  issuing  the  summons,  or  at  any  time 
before  answer,  claim  the  delivery  of  such  property  to  him. 

Where  a  delivery  is  claimed,  an  affidavit  must  be  made  by  the 
plaintiff,  or  by  some  one  on  his  behalf,  showing— 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed,  (par- 
ticularly describing  it)  or  is  entitled  to  the  possession  thereof. 

2.  That  the  property  is  wrongfully  detained  by  the  defendant. 

3.  The  alleged  cause  of  the  detention  thereof,  according  to   his 
best  knowledge,  information,  and  belief. 

4.  That  it  has  not  been  taken  for  a  tax,  assessment  or  fine,  pur- 
suant to  a  statute  ;  or  seized  under  an  execution  or  an   attachment 
against  the  property  of  the  plaintiff;  or  if  so  seized,  that  it   is   by 
statute  exempt  from  seizure. 

5.  The  actual  value  of  the  property. 

The  plaintiff  or  his  attorney  may,  thereupon,  by  an  endorse- 
ment in  writing  upon  the  affidavit,  require  the  sheriff  of  the 
county  where  the  property  claimed  may  be,  to  take  the  same 
from  the  defendant. 

Upon  a  receipt  of  the  affidavit  and  notice  with  a  written  under- 
taking, executed  by  two  or  more  sufficient  sureties,  approved  by 
the  sheriff,  to  the  effect  that  they  are  bound  to  the  defendant  in 
double  the  value  of  the  property  as  stated  in  the  affidavit  for  the 
prosecution  of  the  action,  for  the  return  of  the  property -to  the  de- 
fendant, if  return  thereof  be  adjudged,  and  for  the  payment  to 
him  of  such  sum  as  may  from  any  cause  be  recovered  against  the 
plaintiff,  the  sheriff  must  forthwith  take  the  property  described  in 
the  affidavit,  if  it  be  in  the  possession  of  the  defendant  or  his  agent, 
and  retain  it  in  his  custody.  The  Sheriff  must,  without  delay, 
serve  on  the  defendant  a  copy  of  the  affidavit,  notice,  and  under- 
taking. 


Chap.  8.]  CALIFORNIA.  57 

The  defendant  may  within  two  days  after  the  service  of  a  copy 
of  the  affidavit  and  undertaking  give  notice  to  the  sheriff  that  he 
excepts  to  the  sufficiency  of  the  sureties.  If  he  fails  to  do  so,  he  is 
deemed  to  have  waived  all  objections  to  them.  When  the  defend- 
ant excepts,  the  sureties  must  justify  on  notice  before  the  judge  or 
county  clerk ;  and  the  sheriff  is  responsible  for  the  sufficiency  of 
the  sureties  until  the  objection  to  them  is  either  waived  or  until 
they  justify. 

At  any  time  before  the  delivery  of  the  property  to  the  plaintiff, 
the  defendant  may,  if  he  do  not  except  to  the  sureties  of  the 
plaintiff,  require  the  return  thereof,  upon  giving  to  the  sheriff  a 
written  undertaking,  executed  by  two  or  more  sufficient  sureties,  to 
the  effect  that  they  are  bound  in  double  the  value  of  the  property, 
as  stated  in  the  affidavit  of  the  plaintiff,  for  the  delivery  thereof  to 
the  plaintiff,  if  such  delivery  be  adjudged  ;  and  for  the  payment  to 
him  of  such  sum  as  may,  for  any  cause,  be  recovered  against  the 
defendant.  If  a  return  of  the  property  be  not  so  required  within 
five  days  after  the  taking  and  service  of  notice  to  the  defendant,  it 
must  be  delivered  to  the  plaintiff,  unless  claimed  by  a  third  party, 
as  hereafter  set  forth.  The  defendant's  sureties,  upon  notice  to  the 
plaintiff  of  not  less  than  two  or  more  than  five  days,  must  justify 
before  a  judge  or  county  clerk  ;  and,  upon  such  justification,  the 
sheriff  must  deliver  the  property  to  the  defendant.  The  sheriff  is 
responsible  for  the  defendant's  sureties  until  they  justify,  or  until 
the  justification  is  completed  or  waived,  and  may  retain  the  property 
until  that  time ;  if  they,  or  others  in  their  place,  fail  to  justify  at 
the  time  and  place  appointed,  he  must  deliver  the  property  to  the 
plaintiff. 

If  the  property  taken  be  claimed  by  any  other  person  than  the 
defendant  or  his  agent,  and  such  person  make  affidavit  of  his  title 
thereto,  or  right  to  the  possession  thereof,  stating  the  grounds  of 
such  title  or  right,  and  serve  the  same  upon  the  sheriff,  the  sheriff 
is  not  bound  to  keep  the  property  or  deliver  it  to  the  plaintiff,  un- 
less the  plaintiff,  on  demand  of  him,  or  his  agent,  indemnify  the 
sheriff  against  such  claim,  by  an  undertaking,  by  two  sufficient 
sureties  ;  and  no  claim  to  such  property  by  any  other  person  than 
the  defendant  or  his  agent  is  valid  against  the  sheriff,  unless  so 
made. 


58  CALIFORNIA.  [Part  3. 

The  provisions  contained  in  this  chapter  are  applicable  to  cases 
in  Justices'  Courts,  the  word  "  constable  "  being  substituted  for 
"  sheriff,"  and  "  justice  "  for  "judge." 


CHAPTER   IX. 

ARREST  AND  BAIL. 

The  defendant  may  be  arrested  in  a  civil  action  in  the  following 
cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause 
of  action  arising  upon    contract,    express  or  implied,   when   the 
defendant  is  about  to  depart  from  the  State,  with  intent  to  defraud 
his  creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied,  or  converted  to  his  own  use, 
by  a  public  officer,  or  an  officer  of  a  corporation,  or  an  attorney, 
factor,  broker,  agent,  or  clerk,  in  the  course  of  his  employment  as 
such,  or  by  any  other  person  in  a  fiduciary  capacity  ;  or  for  mis- 
conduct or  neglect  in  office,  or  in  a  professional  employment,  or  for 
a  willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property  or  any  part  thereof  has  been 
concealed,  removed,  or  disposed  of,  to  prevent  its  being  found  or 
taken  by  the  sheriff. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contract- 
ing the  debt,  or  incurring  the  obligation  for  which   the  action  is 
brought ;  or  in  concealing  or  disposing  of  the  property,  for  the  tak- 
ing, detention,  or  conversion  of  which  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 


Chap.  9.]  CALIFORNIA.  59 

The  order  of  arrest  is  made  upon  affidavit  of  the  plaintiff,  or 
some  other  person,  that  a  sufficient  cause  of  action  exists,  and  the 
case  is  one  of  those  mentioned  above. 

Before  making  the  order  of  arrest,  the  judge  must  require  a 
written  undertaking  on  the  part  of  the  plaintiff,  with  sureties  in  an 
amount  to  be  fixed  by  the  judge,  which  must  be  at  least  five  hun- 
dred dollars,  to  the  effect  that  the  plaintiff  will  pay  all  costs  which 
may  be  adjudged  to  the  defendant,  and  all  damages  which  he  may 
sustain  by  reason  of  the  arrest,  if  the  same  be  wrongful,  or  without 
sufficient  cause,  not  exceeding  the  sum  specified  in  the  undertaking. 

In  the  Justice's  Court,  the  defendant  may  be  arrested  in  a  civil 
action,  in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages,  on  a 
cause  of  action  arising  upon  contract,  express   or  implied,  when 
the  defendant  is  about  to  depart  from  the  State,  with  intent  to 
defraud  his  creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled  or  fraudulently  misapplied,  or  converted  to  his  own  use, 
by  one  who  received  it  in  a  fiduciary  capacity. 

3.  When  the  defendant  has  been  guilty  of  a  fraud  in  conftiact- 
ing  the  debt  or  incurring  the^  obligation  for  which  the  action  is 
brought. 

4.  When  the  defendant  has  removed,  concealed,  or  disposed  of 
his  property,  or  is  about  to  do  so,  with  intent  to  defraud  his  cred- 
itors. 

No  female  can  be  arrested  in  an  action  in  the  Justice's  Court. 
Before  an  order  of  arrest  can  be  made,  the  party  applying  must 
prove  to  the  satisfaction  of  the  justice,  by  the  affidavit  of  himself, 
or  some  other  person,  the  facts  upon  which  the  application  is  found- 
ed, and  the  plaintiff  must  execute  and  deliver  to  the  justice  a 
written  undertaking  in  the  sum  of  three  hundred  dollars,  with  suf- 
ficient sureties,  to  the  effect  that  the  plaintiff  will  pay  all  costs  that 
may  be  adjudged  to  the  defendant,  and  all  damages  which  he  may 
sustain  by  reason  of  the  arrest,  if  the  same  be  wrongful  or  without 
sufficient  cause,  not  exceeding  the  sum  specified  in  the  undertaking. 


60  CALIFORNIA.  [Part  3. 


CHAPTER  X. 

INJUNCTIONS. 

An  injunction  is  a  writ  or  order  requiring  a  person  to  refrain 
from  a  particular  act.     It  may  be  granted  in  the  following  cases : 

1.  When  it  appears  by  the  complaint  that  the  plaintiff  is  entitled 
to  the  relief  demanded,  and  such  relief,  or  any  proof  thereof,  con- 
sists in  restraining  the   commission  or  continuance  of  the  act  com- 
plained of,  either  for  a  limited  period  or  perpetually. 

2.  When  it  appears  by  the  complaint  or  affidavit,  that  the  com- 
mission or  continuance  of  some  act  during  the  litigation  would  pro- 
duce waste,  great  or  irreparable  injury  to  the  plaintiff. 

3.  When  it  appears,  during  the  litigation,  that  the  defendant  is 
doing  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering  to 
be  done,  some  act  in  violation  of  the  plaintiff's  rights  respecting  the 
subject  of  the  action,  and  tending  to  render  the  judgment  inef- 
fectual. 


CHAPTER  XI. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment  is  the  final  determination  of  the  rights  of  the  par- 
ties in  an  action  or  proceeding. 

A  judgment  may  be  given  for  or  against  one  or  more  of  several 
plaintiffs,  and  for  or  against  one  or  more  of  several  defendants ; 
and  it  may,  when  the  justice  of  the  case  requires  it,  determine  the 
ultimate  rights  of  the  parties  on  each  side,  as  between  them- 
selves. 


Chap.  11.]  CALIFORNIA.  61 

In  an  action  against  several  defendants,  the  Court  may,  in  its  dis- 
cretion, render  judgment  against  one  or  more  of  them,  leaving  the 
action  to  proceed  against  the  others,  whenever  a  several  judgment 
is  proper. — 

The  relief  granted  to  the  plaintiff,  if  there  be  no  answer,  cannot 
exceed  that  which  he  shall  have  demanded  in  his  complaint ;  but  in 
any  other  case,  the  Court  may  grant  him  any  relief  consistent  with 
the  case  made  by  the  complaint  and  embraced  within  the  issue. 

An  action  may  be  dismissed  or  a  judgment  of  non-suit  entered  in 
the  following  cases : 

1.  By  the  plaintiff  himself,  at  any  time  before  trial,  upon  the 
payment  of  costs,  if  a  counter-claim  has  not  been  made. 

2.  By  either  party,  upon  the  written  consent  of  the  other. 

3.  By  the  Court,  when  the  plaintiff  fails  to  appear  on  the  trial, 
and  the  defendant  appears  and  asks  for  the  dismissal. 

4.  By  the  Court,  when,  upon  the  trial,  and  before  the  final  sub- 
mission of  the  case,  the  plaintiff  abandons  it. 

5.  By  the  Court,  upon  motion  of  the  defendant,  when,  upon  the 
trial,  the  plaintiff  fails  to  prove  a  sufficient  case  for  the  jury. 

In  all  other  cases,  judgment  must  be  rendered  on  the  merits. 

• 

JUDGMENT  UPON  FAILURE  TO  ANSWER. 

Judgment  may  be  had  if  the  defendant  fail  to  answer  or  demur 
to  the  complaint  within  the  time  specified  in  the  summons,  or  within 
such  further  time  as  may  have  been  granted,  as  follows : 

1.  In  an  action  arising  upon  contract  for  the  recovery  of  money 
or  damages  only,  the  clerk,  upon  application  of  the  plaintiff,  must 
enter  the  default  of   the  defendant,   and  immediately  thereafter 
enter  judgment  for  the  amount  specified  in  the  summons,  including 
the  costs,  against  the  defendant,  or  against  one  or  more  of  several 
defendants,  when   the   action  is  against  two  or  more  defendants, 
jointly  or  severally  liable  on  a  contract,  and  the  summons  is  served 
on  one  or  more,  and  not  on  all  of  them,  in  which  case  the  plaintiff 
may  proceed  against  the  defendants  served  in  the  same  manner  as 
if  they  were  the  only  defendants. 

2.  In  other  actions,  the  clerk  must  enter  the  default  of  the  de- 


62  CALIFORNIA.  [Part  3. 

fendant ;  and  thereafter  the  plaintiff  may  apply  at  the  first  or  any 
subsequent  term  of  the  Court  for  the  relief  demanded  in  the  com- 
plaint. If  the  taking  of  an  account,  or  the  proof  of  any  fact,  is 
necessary  to  enable  the  Court  to  give  judgment,  or  to  carry  the 
judgment  into  effect,  the  Court  may  take  the  account  or  hear  the 
proof;  or  may,  in  its  discretion,  order  a  reference  for  that  purpose. 
And  when  the  action  is  for  damages,  in  whole  or  in  part,  the  Court 
may  order  the  damages  to  be  assessed  by  a  jury  ;  or  if,  to  determine 
the  amount  of  damages,  the  examination  of  a  long  account  be  in- 
volved, by  a  reference  as  above  provided. 

3.  In  an  action  where  the  service  of  summons  was  by  publica- 
tion, the  plaintiff,  upon  the  expiration  of  the  time  for  answering, 
may,  upon  proof  of  the  publication,  and  that  no  answer  has  been 
filed,  apply  for  judgment ;  and  the  Court  must  thereupon  require 
proof  to  be  made  of  the  demand  mentioned  in  the  complaint ;  and 
if  the  defendant  be  not  a  resident  of  the  State,  must  require  the 
plaintiff  or  his  agent  to  be  examined  on  oath  respecting  any  pay- 
ments that  have  been  made  to  the  plaintiff,  or  to  any  one  for  his 
use,  on  account  of  such  demand,  and  may  render  judgment  for  the 

amount  which  he  is  entitled  to  recover. 

• 

JUDGMENT  BY  CONFESSION. 

A  judgment  by  confession  may  be  entered  without  action,  either 
for  money  due  or  to  become  due,  or  to  secure  any  person  against 
contingent  liability  on  behalf  of  the  defendant,  or  both. 

A  statement  in  writing  must  be  made,  signed  by  the  defendant 
and  verified  by  his  oath,  to  the  following  effect : 

1.  It  must  authorize  the  entry  of  judgment  for  a  specified  sum. 

2.  If  it  be  for  money  due,  or  to  become  due,  it  must  state  con- 
cisely the  facts  out  of  which  it  arose,  and  show  that  the  sum  con- 
fessed therefor  is  justly  due,  or  to  become  due. 

3.  If  it  be  for  the   purpose  of  securing  the  plaintiff  against  a 
contingent  liability,  it  must  state  concisely  the  facts  constituting 
the  liability,  and  show  that  the   sum  confessed  therefor  does  not 
exceed  the  same. 


Chap.  11.]  CALIFORNIA.  ;     63 

JUDGMENT  ON  PROCEEDINGS  WITHOUT  ACTION  BY  SUBMISSION  or 
A  CONTROVERSY. 

Parties  to  a  question  in  difference,  which  might  be  the  subject 
of  a  civil  action,  may,  without  action,  agree  upon  a  case  containing 
the  facts  upon  which  the  controversy  depends,  and  present  a  sub- 
mission of  the  same  to  any  Court  which  would  have  jurisdiction,  if 
an  action  had  been  brought ;  but  it  must  appear  by  affidavit  that 
the  controversy  is  real,  and  the  proceedings  in  good  faith  to  deter- 
mine the  rights  of  the  parties.  The  Court  must,  thereupon,  hear 
and  determine  the  case,  and  render  judgment  thereon,  as  if  an 
action  were  pending. 

JUDGMENT  AFTER  VERDICT. 

When  trial  by  jury  has  been  had,  judgment  must  be  entered  by 
the  Clerk  in  conformity  to  the  verdict,  within  twenty-four  hours 
after  the  rendition  of  the  verdict,  unless  the  Court  order  the  case  to 
be  reserved  for  argument  for  further  consideration,  or  .grant  a  stay 
of  proceedings. 

Upon  the  trial  of  a  question  of  fact  by  the  Court,  its  decision 
must  be  given  in  writing,  and  filed  with  the  clerk,  within  thirty 
days  after  the  cause  is  submitted  for  decision. 

Judgment  upon  the  decision  must  be  entered  accordingly. 

On  a  judgment  for  the  plaintiff  upon  an  issue  of  law,  he  may 
proceed  as  in  the  case  of  judgment  upon  failure  to  answer.  If 
judgment  be  for  the  defendant  upon  an  issue  of  law,  and  the  taking 
of  an  account  or  the  proof  of  any  fact  be  necessary  to  enable  the 
Court  to  complete  the  judgment,  a  reference  may  be  ordered. 

PROCEEDINGS  AGAINST  JOINT  DEBTORS. 

When  a  judgment  is  recovered  against  one  or  more  of  several 
persons,  jointly  indebted  upon  an  obligation,  those  who  were  not 
originally  served  with  the  summons,  and  did  not  appear  to  the  ac- 
tion, may  be  summoned  to  show  cause  why  they  should  not  be 
bound  by  the  judgment  in  the  same  manner  as  though  they  had 
been  originally  served  with  the  summons. 


CALIFORNIA.  [Part  3. 


PROCEEDINGS  ON  OFFER  OF  DEFENDANT  TO  COMPROMISE. 

The  defendant  may,  at  any  time  before  the  trial  or  judgment, 
serve  upon  the  plaintiff  an  offer  to  allow  judgment  to  be  taken 
against  him  for  the  sum  or  property,  or  to  the  effect  therein  speci- 
fied. If  the  plaintiff  accept  the  offer,  and  give  notice  thereof 
within  five  days,  he  may  file  the  offer,  with  proof  of  notice  of  ac- 
ceptance, and  the  clerk  must  thereupon  enter  judgment  accord- 
ingly. If  the  notice  of  acceptance  be  not  given,  the  offer  is  to  be 
deemed  withdrawn,  and  cannot  be  given  in  evidence  upon  the  trial ; 
and  if  the  plaintiff  fail  to  obtain  a  more  favorable  judgment,  he 
cannot  recover  costs,  but  must  pay  the  defendant's  costs  from  the 
time  of  the  offer. 

GOLD  COIN  OR  CURRENCY  JUDGMENT. 

In  an  action  on  a  contract  or  obligation  in  writing,  for  the  direct 
payment  of  money,  made  payable  in  a  specified  kind  of  money  or 
currency,  judgment  for  the  plaintiff,  whether  it  be  by  default  or 
after  verdict,  may  follow  the  contract  or  obligation,  and  be  made 
payable  in  the  kind  of  money  or  currency  specified  therein  ;  and  in 
all  actions  for  the  recovery  of  money,  if  the  plaintiff  allege  in  his 
complaint  that  the  same  was  understood  and  agreed  by  the  respect- 
ive parties  to  be  pay  able  in  a  specified  kind  of  money  or  currency, 
and  this  fact  is  admitted  by  the  default  of  the  defendant  or  establish- 
ed by  evidence,  the  judgment  for  the  plaintiff  must  be  made  pay- 
able in  the  kind  of  money  or  currency  so  alleged  in  the  complaint ; 
and  in  an  action  against  any  person  for  the  recovery  of  money  re- 
ceived by  such  person  in  a  fiduciary  capacity,  or  to  the  use  of 
another,  judgment  for  the  plaintiff  must  be  made  payable  in  the 
kind  of  money  or  currency  so  received  by  such  person. 

JUDGMENT  IN  REPLEVIN. 

In  an  action  to  recover  the  possession  of  personal  property,  judg- 
ment for  the  plaintiff  may  be  for  the  possession  or  value  thereof,  in 
case  a  delivery  cannot  be  had,  and  damages  for  the  detention.  If  the 


Chap.  11.]  CALIFORNIA.  65 

property  has  been  delivered  to  the  plaintiff,  and  the  defendant  claim  a 
return  thereof,  judgment  for  the  defendant  may  be  for  a  return  of 
the  property,  or  the  value  thereof,  in  case  a  return  cannot  be  had, 
and  damages  for  taking  and  withholding  the  same. 

JUDGMENT  LIEN. 

From  the  time  the  judgment  is  docketed  it  becomes  a  lien  upon 
all  the  real  property  of  the  judgment  debtor,  not  exempt  from  ex- 
ecution in  the  county,  owned  by  him  at  the  time,  or  which  he  may 
afterwards  acquire,  until  the  lien  ceases.  The  lien  continues  for 
two  years,  unless  the  enforcement  of  the  judgment  be  stayed  on 
appeal  by  execution  of  a  sufficient  undertaking,  in  which  case  the 
lien  of  the  judgment  ceases.  See  elsewhere,  how  judgments  in 
Justices'  Courts  are  made  a  lien  on  real  property. 

A  transcript  of  the  original  docket,  certified  by  the  clerk,  may 
be  filed  with  the  recorder  of  any  other  county ;  and  from  the  time 
of  the  filing  the  judgment  becomes  a  lien  upon  all  the  real  prop- 
erty of  the  judgment  debtor,  not  exempt  from  execution,  in 
such  county,  owned  by  him  at  |he  time,  or  which  he  may  after- 
wards, and  before  the  lien  expires,  acquire.  The  lien  continues 
for  two  years. 

PROVISIONS  IN  JUSTICES'  COURTS. 

Judgment  by  default. 

When  the  defendant  fails  to  appear  and  answer  or  demur  at  the 
time  specified  in  the  summons,  or  within  one  hour  thereafter,  then, 
upon  proof  of  service  of  the  summons,  the  following  proceedings 
must  be  had  : 

1.  If  the  action  is  based  upon  a  contract,  and  is  for  the  recov- 
ery of  money  or  damages  only,  the  Court  must  render  judgment  in 
favor  of  plaintiff  for  the  sum  specified  in  the  summons. 

2.  In  all  other  actions,  the  Court  must  hear  the  evidence  offered 
by  the  plaintiff,  and  must  render  judgment  for  such  a  sum  (not  ex- 
ceeding the  amount  stated  in  the  summons)  as  appears  by  such 
evidence  to  be  just. 

In  the  following  cases  the  same  proceedings  must  be  had,  and 
5 


G6  CALIFORNIA.  [Part  3. 

judgment  must  be  rendered  in  like  manner,  as  if  the  defendant  had 
failed  to  appear  and  answer  or  demur  : 

1.  If  the  complaint  has  been  amended,  and  the  defendant  fails 
to  answer  it  as  amended,  within  the  time  allowed  by  the  Court. 

2.  If  the  demurrer  to  the  complaint  is  overruled,  and  the  de- 
fendant fails  to  answer  at  once. 

3.  If  the  demurrer  to  the  answer  is  sustained,  and  the  defend- 
ant fails  to  amend  the  answer  within  the  time  allowed  by  the  Court. 

Judgments  other  than  by  default : 
Judgments  upon  confession  may  be  entered  up  in  any  Justice's 

Court  specified  in  the  confession. 

Judgment  that  the  action  be  dismissed  without   prejudice  to  a 

new  action,  may  be  entered  with  costs  in  the  following  cases : 

1.  When  the  plaintiff  voluntarily  dismisses  the  action  before  it 
is  finally  submitted. 

2.  When  he  fails  to  appear  at  the  time  specified  in  the  sum- 
mons, or  at  the  time-  to  which  the  action  has  been  postponed,  or 
within  one  hour  thereafter. 

3.  When  after  a  demurrer  to  the  complaint  has  been  sustained, 
the  plaintiff  fails  to  amend  it  withm  the  time  allowed  by  the  Court. 

4.  When  it  is  objected  at  the  trial,  and  appears  by  the  evidence, 
that  the  action  is  brought  in  the  wrong  county,  or  township,  or 
city ;  but  if  the  objection  is  taken  and  overruled,  it  is  cause  only 
of  reversal  on  appeal,  and  'does  not  otherwise  invalidate  the  judg- 
ment ;  if  not  taken  at  the  trial,  it  is  waived. 

When  a  trial  by  a  jury  has  been  had,  judgment  must  be  en- 
tered by  the  justice,  at  once,  in  conformity  with  the  verdict. 

When  the  trial  is  by  the  Court,  judgment  must  be  entered  at  the 
end  of  the  trial. 

When  the  amount  found  due  to  either  party  exceeds  the  sum 
for  which  the  justice  is  authorized  to  enter  judgment, '  such  party 
may  remit  the  excess,  and  judgment  may  be  entered  for  the  residue. 

If  the  defendant,  at  any  time  before  the  trial,  offer  in  writing  to 
allow  judgment  to  be  taken  against  him  for  a  specific  sum,  the 
plaintiff  may  immediately  have  judgment  therefor,  with  the  costs 
then  accrued  ;  but  if  he  do  not  accept  such  offer  before  the  trial, 
and  fail  to  recover  in  the  action  a  sum  equal  to  the  offer,  he  can- 


Chap.  12.]  CALIFORNIA.  67 

not  recover  costs,  but  costs  must  be  adjudged  against  him,  and  if 
he  recover,  be  deducted  from  his  recovery.  The  offer  and  failure 
to  accept  it  cannot  be  given  in  evidence,  nor  affect  the  recovery 
otherwise  than  as  to  costs. 

The  justice  must  tax  and  include  in  the  judgment  the  costs 
allowed  by  law  to  the  prevailing  party. 

An  abstract  of  the  judgment  may  be  'filed  and  docketed  in  the 
office  of  the  county  clerk  of  the  county  in  which  the  judgment 
was  rendered,  and  must  be  docketed  in  the  judgment  docket  of  the 
county  court. 

A  judgment  rendered  in  a  Justice's  Court  creates  no  lien  upon 
any  land  of  the  defendant,  unless  an  abstract  of  the  judgment  is 
filed  and  recorded  in  the  office  of  the  recorder  of  the  county  in 
which  the  lands  are  situated ;  when  so  filed  and  recorded,  such  a 
judgment  is  a  lien  upon  the  lands  of  the  judgment  debtor  situated 
in  that  county. 


CHAPTER  XII. 

EXECUTIONS-SALE  AND  REDEMPTION. 

The  party  in  whose  favor  judgment  is  given  may  at  any  time, 
within  five  years  after  the  entry  thereof,  have  a  writ  of  execution 
issued  for  its  enforcement — same  in  Justice  Court  actions.  The 
execution  may  be  made  returnable  at  any  time  not  less  than  ten 
nor  more  than  sixty  days  after  its  receipt  by  the  sheriff  or  constable. 

Executions  may  at  the  same  time  be  issued  to  different  counties. 

In  Justices'  Courts,  the  justice  before  whom  the  action  is  brought 
may  issue  an  execution  directed  to  the  sheriff  or  constable  of  the 
county  in  which  judgment  is  obtained  ;  when  it  is  desired  to  issue 
execution  directed  to  the  sheriff  of  another  county,  it  is  necessary 


68  CALIFORNIA.  [Part  3. 

to  file  an  abstract  of  the  judgment  with  the  county  clerk  of  the 
county  within  which  the  judgment  is  obtained,  and  have  him  issue 
the  execution. 

Notwithstanding  the  death  of  a  party  after  the  judgment,  execu- 
tion thereon  may  be  issued,  or  it  may  be  enforced  as  follows  : 

1.  In  the  case  of  the  death  of  the  judgment  cre.ditor,  upon  the 
application  of  his  executor  or  administrator,  or  successor  in  interest. 

2.  In  the  case  of  the  judgment  debtor,  if  the  judgment  be  for 
the  recovery  of  real  or  personal  property,  or  the  enforcement  of  a 
lien  thereon. 

When  any  judgment  has  been  rendered  for  or  against  the  testa- 
tor or  intestate  in  his  lifetime,  no  execution  shall  issue  thereon  after 
his  death,  except  as  above  provided.  If  execution  is  actually  lev- 
ied upon  any  property  of  the  decedent  before  his  death,  the  same 
may  be  sold  for  the  satisfaction  thereof;  and  the  officer  making  the 
sale  must  account  to  the  executor  or  administrator  for  any  surplus 
in  his  hands. 

The  following  property  is  exempt  from  execution  except  upon  a 
judgment  recovered  for  its  price,  or  upon  a  mortgage  thereon : 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  two  hundred 
dollars. 

2.  Necessary  household,  table  and  kitchen  furniture,  including 
one  sewing  machine  and  one  piano,  in  actual  use  in  a  family,  or 
belonging  to  a  womam;  stoves,  stove-pipes  and  stove  furniture, 
wearing   apparel,   beds,   bedding   and    bedsteads,  and   provisions 
actually  provided  for  individual  or  family  use,  sufficient  for  one 
month. 

3.  The   farming   utensils  or  implements  of  husbandry  of  the 
judgment  debtor ;  also,  two  oxen  or  two  horses,  or  two  mules  and 
their  harness,  one  cart  or  wagon,  and  food  for  such  oxen,  horses, 
or  mules  for  one  month ;  also,  all  seed  grain  or  vegetables  actually 
provided,  reserved  or  on  hand,  for  the  purpose  of  planting  or  sow- 
Ing  at  any  time  within  the  ensuing  six  months,  not  exceeding  in 
value  the  sum  of  two  hundred  dollars. 

4.  Tools  or  implements  of  a  mechanic  or  artisan,  necessary  to 
carry  on  trade  ;  the  notarial  seal  and  records  of  a  notary  public  ; 
.the  instruments  and  chest  of  a  surgeon,  physician,  surveyor  and 


Chap.  12.]  CALIFORNIA.  69 

dentist,  necessary  to  the  exercise  of  their  profession,  with  their 
scientific  and  professional  libraries ;  the  law  professional  libraries 
and  office  furniture  of  attorneys,  counselors,  and  judges,  and  the 
libraries  of  ministers  of  the  gospel. 

5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in  value  the 
sum  of  five  hundred  dollars  ;  also  his  sluices,  pipes,  hose,  windlass, 
derrick,  cars,  pumps,  tools,  implements   and  appliances  necessary 
for  carrying  on  any  kind  of  mining  operations,   not  exceeding  in 
value  the  aggregate  sum  of  five  hundred  dollars ;  and  two  horses, 
mules  or  oxen,  with  their  harness ;  and  food  for  such  horses,  mules 
or  oxen  for  one  month,  when  necessary  to  be  used  in  any  whim, 
windlass,  derrick,  car,  pump  or  hoisting  gear. 

6.  Two  oxen,  two  horses  or  two  mules,  and  their  harness  ;  one 
cart  or  wagon,  one  dray  or  truck,  one  coupee,  one  hack  or  carriage 
for  one  or  two  horses,  by  the   use  of  which  a  cartman,  drayman, 
truckman,  huckster,  peddler,  hackman,  teamster  or  other  laborer 
habitually  earns  his  living  ;  and  one  horse,  with  vehicle  and  harness, 
or  other«equipments,  used  by  a  physician,  surgeon  or  minister  of  the 
gospel  in  making  his  professional  visits,  with  food  for  such  oxen, 
horses  or  mules,  for  one  month. 

7.  Four  cows  with  their  sucking  calves,  and  four  hogs  with  their 
sucking  pigs. 

8.  Poultry,  not  exceeding  in  value  fifty  dollars. 

9.  The  earnings  of  the  judgment  debtor  for  his  personal  services 
rendered  at  any  time  within  thirty  days  next  preceding  the  levy 
of  execution  or  levy  of  attachment,  when  it  appears  by  the  debtor's 
affidavit  or  otherwise  that  such  earnings  are  necessary  for  the  use 
of  his  family  residing  in  this  State,  supported  wholly  or  in  part  by 
his  labor. 

10.  The  shares  held   by  a  member  of  a  homstead  association 
duly  incorporated,  not  exceeding  in  value  one  thousand  dollars — if 
the  person  holding  the  shares  is  not  the  owner  of  a  homestead  under 
the  law  of  this  State. 

11.  All  moneys,  benefits,  privileges,  or  immunities  accruing,  or 
in  any  manner  growing  out  of  any  life  insurance  on  the  life  of  the 
debtor,  made  in  any  company  incorporated  under  the  laws  of  this 
State,  if  the  annual  premiums  paid  do  not   exceed   five    hundred 
dollars. 


70  CALIFORNIA.  [Part  3. 

12.  All  fire  engines,  hooks,  and  ladders,  with  the  carts,  trucks, 
and  carriages,  hose,  buckets,  implements,  and  apparatus  thereto 
appertaining,  and  all  furniture  and  uniform  of  any  fire  company  or 
department  organized  under  any  law  of  this  State. 

13.  All  arms,  uniforms,  and  accoutrements  required  by  law  to 
be  kept  by  any  person. 

14.  All   court-houses,  jails,  public  offices   and   buildings,  lots, 
grounds   and   personal   property,   the   fixtures,   furniture,  books, 
papers,  and  appurtenances  belonging  and  pertaining  to  the  court- 
house, jail,  and  public  offices  belonging  to  any  county  of  this  State  ; 
and  all  cemeteries,  public  squares,  parks  and  places,  public    build- 
ings, town  halls,  markets,  buildings  for  the  use  of  fire  departments 
and  military  organizations,  and  the  lots  and  grounds  thereto  belong- 
ing and  appertaining,  owned  or  held  by  any  town  or  incorporated 
city,  or  dedicated  by  such  town  or  city  to  health,  ornament,  or  public 
use,  or  for  the  use  of  any  fire  or  military  company  organized  under 
the  laws  of  this  State. 

For  exemption  of  homesteads,  see  "  Homesteads."         •.* 

NOTICE  OP  SALE. 

Before  the  sale  of  property  on  execution,  notice  thereof  must  be 
given  as  follows :    [Same  in  Justice  Court  actions.] 

1.  In  the  case  of  perishable  property ;  by  posting  written  notice 
of  the  time  and  place  of  sale  in  three  public  places  of  the  township 
or  city  where  the  sale  is  to  take  place,  for  such  time  as   may  be 
reasonable,  considering  the  character  and  condition  of  the  property. 

2.  In  case  of  other  personal  property ;  by  posting  a  similar  notice 
in  three  public  places  in  the  township  or  city  where  the  sale  is  to 
take  place,  for  not  less  than  five  nor  more  than  ten  days. 

3.  In  case  of  real  property ;  by  posting  a  similar  notice  par- 
ticularly describing  the  property,  for  twenty  days,  in  three  public 
places  of  the  township  or  city  where  the  property  is  situated,  and 
also  where  the  property  is  to  be  sold,  and  publishing  a  copy  thereof 
once  a  week  for  the  same  period,  in  some  newspaper  published  in 
the  county,  if  there  be  one. 


Chap.  12.]  CALIFORNIA.  71 


SALE  OF  REAL  PROPERTY — WHEN  ABSOLUTE  OR  NOT. 

Upon  a  sale  of  real  property,  the  purchaser  is  substituted  to  and 
acquires  all  the  right,  title,  and  interest,  and  claim  of  the  judg- 
ment debtor  thereto ;  and  when  the  estate  is  less  than  a  leasehold 
of  two  years'  unexpired  term,  the  sale  is  absolute.  In  other  cases 
the  property  is  subject  to  redemption. 

CERTIFICATE  OF  SALE  OF  REAL  ESTATE. 

The  officer  must  give  the  purchaser  a  certificate  of  sale,  and  a 
duplicate  of  such  certificate  must  be  filed  by  the  officer  in  the  office 
of  the  recorder  of  the  county. 

BY  WHOM  PROPERTY  MAY  BE  REDEEMED,  AND  WHEN. 

Property  sold,  subject  to  redemption,  as  above  provided,  or 
any  part  sold  separately,  may  be  redeemed  in  the  manner 
hereinafter  provided,  by  the  following  persons  or  their  successors  in 
interest : 

1.  The  judgment  debtor,  or  his  successor  in   interest,  in  the 
whole  or  any  part  of  the  property. 

2.  A  creditor,  having  a  lien  by  judgment   or  mortgage  on  the 
property  sold,  or  on  some  share  or  part  thereof  subsequent  to  that 
on  which  the  property  was  sold. 

The  judgment  debtor  or  redemptioner  may  redeem  the  property 
from  the  purchaser  within  six  months  after  the  sale,  on  paying  the 
purchaser  the  amount  of  the  purchase,  with  twelve  per  cent,  there- 
on in  addition,  together  with  the  amount  of  any  assessment  or 
taxes  which  the  purchaser  may  have  paid  thereon  after  the  pur- 
chase, and  interest  on  such  amount ;  and  if  the  purchaser  be  also 
a  creditor,  having  a  prior  lien  to  that  of  the  redemptioner,  other 
than  the  judgment  under  which  such  purchase  was  made,  the 
amount  of  such  lien,  with  interest. 

If  property  be  so  redeemed  by  a  redemptioner,  another  redemp- 
tioner may,  within  sixty  days  after  the  last  redemption,  again 
redeem  it  from  the  last  redemptioner,  on  paying  the  sum  paid  on 


72  CALIFORNIA.  [Part  3. 

such  last  redemption,  with  four  per  cent,  thereon  in  addition,  and 
the  amount  of  any  assessment  or  taxes  which  the  last  redemptioner 
may  have  paid  thereon  after  the  redemption  by  him,  with  interest 
on  such  amount ;  and,  in  addition,  the  amount  of  any  liens  held  by 
said  last  redemptioner  prior  to  his  own,  with  interest ;  but  the 
judgment  under  which  the  property  was  sold  need  not  be  so  paid 
as  a  lien.  The  property  may  be  again,  and  as  often  as  a  redemp- 
tioner is  so  disposed,  redeemed  from  any  previous  redemptioner 
within  sixty  days  after  the  last  redemption,  on  paying  the  sum 
paid  on  the  last  previous  redemption,  with  four  per  cent,  thereon  in 
addition,  and  the  amount  of  any  assessments  or  taxes  which  the 
last  previous  redemptioner  paid  after  the  redemption  by  him,  with 
interest  thereon  ;  and  the  amount  of  any  liens,  other  than  the  judg- 
ment under  which  the  property  was  sold,  held  by  the  last  redemp- 
tioner previous  to  his  own,  with  interest.  Written  notice  of  re- 
demption must  be  given  to  the  sheriff,  and  a  duplicate  filed  with 
the  recorder  of  the  county;  and  if  any  taxes  or  assessments  are 
paid  by  the  redemptioner,  or  if  he  has  or  acquires  any  lien  other 
than  that  upon  which  the  redemption  was  made,  notice  thereof 
must  in  like  manner  be  given  to  the  sheriff,  and  filed  with  the 
recorder ;  and  if  such  notice  be  not  filed,  the  property  may  be 
redeemed  without  paying  such  tax,  assessment,  or  lien.  If  no  re- 
demption be  made  within  six  months  after  the  sale,  the  purchaser 
or  his  assignee  is  entitled  to  a  conveyance  ;  or,  if  so  redeemed, 
whenever  sixty  days  have  elapsed,  and  no  other  redemption  has 
been  made,  and  notice  thereof  given,  and  the  time  for  redemption 
has  expired,  the  last  redemptioner  or  his  assignee^  is  entitled  to  a 
sheriff's  deed ;  but  in  all  cases  the  judgment  debtor  shall  have 
the  entire  period  of  six  months  from  the  date  of  the  sale  to  redeem 
the  property.  If  the  judgment  debtor  redeem,  he  must  make  the 
same  payments  as  are  required  to  effect  a  redemption  by  a  redemp- 
tioner. If  the  debtor  redeem,  the  effect  of  the  sale  is  terminated, 
and  he  is  restored  to  his  estate.  Upon  a  redemption  by  the  debtor, 
the  person  to  whom  the  payment  is  made  must  execute  and  deliver 
to  him  a  certificate  of  redemption,  acknowledged  or  proved  before 
an  officer  authorized  to  take  acknowledgments  of  conveyances  of 
real  property.  Such  certificate  must  be  filed  and  recorded  in  the 


Chap.  12.]  CALIFORNIA.  73 

office  of  the  recorder  of  the  county  in  which  the  property  is  situ- 
ated. 

Payment  may  be  made  to  the  purchaser  or  redemptioner,  or  for 
him,  to  the  officer  who  made  the  sale. 

A  redemptioner  must  produce  to  the  officer  or  person  from  whom 
he  seeks  to  redeem,  and  serve  with  his  notice  to  the  sheriff — 

1.  A  copy  of  the  docket  of  the  judgment  under  which  he  claims 
the  right  to  redeem,  certified  by  the  clerk  of  the  Court,  or  of  the 
county  where  the  judgment  is  docketed ;  or  if  he  redeem  upon  a 
mortgage  or  other  lien,  a  note  of  the  record  thereof  certified  by 
the  recorder. 

2.  A  copy  of  any  assignment  necessary  to  establish  his  claims, 
verified  by  the   affidavit  of  himself  or  of   a    subscribing  witness 
thereto. 

8.  An  affidavit  by  himself  or  his  agent,  showing  the  amount 
then  actually  due  on  the  lien. 

Until  the  expiration  of  the  time  allowed  for  redemption,  the 
Court  may  restrain  the  commission  of  waste  on  the  property. 

The  purchaser  from  the  time  of  the  sale  until  a  redemption,  and 
a  redemptioner,  from  the  time  of  his  redemption  until  another  re- 
demption, is  entitled  to  receive  from  the  tenant  in  possession  the 
rents  of  the  property  sold,  or  the  value  of  the  use  and  occupation 
thereof.  But  when  any  rents  or  profits  have  been  received  by  the 
judgment  creditor  or  purchaser,  or  his  or  their  assigns,  from  the 
property  thus  sold  preceding  such  redemption,  the  amounts  of 
such  rents  and  profits  shall  be  a  credit  upon  the  redemption  money 
to  be  paid.  * 


74  CALIFORNIA.  [Part  3. 


CHAPTER  XIII. 


PROCEEDINGS    SUPPLEMENTARY    TO    EXEOUTION. 

When  an  execution  against  property  of  the  judgment  debtor, 
or  any  one  of  several  debtors  in  the  same  judgment,  issued  to  the 
sheriff  of  the  county  where  he  resides,  or  if  he  do  not  reside  in 
this  State,  to  the  sheriff  of  the  county  where  the  judgment  roll  is 
filed,  is  returned  unsatisfied,  in  whole  or  in  part,  the  judgment 
creditor,  at  any  time  after  such  return  is  made,  is  entitled  to  an 
order  from  the  judge  of  the  Court,  or  a  county  judge,  requiring 
such  judgment  -debtor  to  appear  and  answer  concerning  his  prop- 
erty, before  such  judge,  or  a  referee  appointed  by  him,  at  a  time 
and  place  specified  in  the  order ;  but  no  judgment  debtor  must  be 
required  to  attend  before  a  judge  or  referee  out  of  the  county  in 
which  he  resides. 

After  the  issuing  of  an  execution  against  property,-  and  upon 
proof  by  affidavit  of  a  party  or  otherwise,  to  the  satisfaction  of 
the  Court,  or  of  a  judge  thereof,  or  county  judge,  that  any  judg- 
ment debter  has  property  which  he  unjustly  refuses  to  apply  to- 
wards the  satisfaction  of  the  judgment,  such  Court  or  judge  may, 
by  an  order,  require  the  judgment  debtor  to  appear  at  a  specified 
time  and  place  before  such  judge,  or  a  referee  appointed  by  him,  to 
answer  concerning  the  same  ;  and  such  proceedings  may-  there- 
upon be  had  for  the  application  of  the  property  of  the  judgment 
debtor  toward  the  satisfaction  of  the  judgment  as  are  provided 
upon  the  return  of  an  execution.  Instead  of  the  order  requiring 
the  attendance  of  the  judgment  debtor,  the  judge  may,'  upon  affi- 
davit of  the  judgment  creditor,  his  agent  or  attorney,  if  it  appears 
to  him  that  there  is  danger  of  the  debtor  absconding,  order  the 
sheriff  to  arrest  the  debtor  and  bring  him  before  such  judge. 
Upon  being  brought  before  the  judge,  he  may  be  ordered  to  enter 
into  an  undertaking,  with  sufficient  surety,  that  he  will  attend 
from  time  to  time  before  the  judge  or  referee,  as  may  be  directed, 
during  the  pendency  of  proceedings  and  until  the  final  termination 


Chap.  13.]  CALIFORNIA.  75 

thereof,  and  will  not  in  the  meantime  dispose  of  any  portion  of  his 
property,  not  exempt  from  execution.  In  default  of  entering  into 
such  undertaking  he  may  be  committed  to  prison. 

After  the  issuing  of  an  execution  against  property,  and  before 
its  return,  any  person  indebted  to  the  judgment  debtor  may  pay  to 
the  sheriff  the  amount  of  his  debt,  or  so  much  thereof  as  may  be 
necessary  to  satisfy  the  execution ;  and  the  sheriff's  receipt  is  a 
sufficient  discharge  for  the  amount  so  paid. 

After  the  issuing  or  return  of  an  execution  against  property  of 
the  judgment  debtor,  or  of  any  one  of  several  debtors  in  the  same 
judgment,  or  upon  proof,  by  affidavit  or  otherwise,  to  the  satisfac- 
tion of  the  judge,  that  any  person  or  corporation  has  property  of 
such  judgment  debtor,  or  is  indebted  to  him  in  an  amount  exceeding 
fifty  dollars,  the  judge  may,  by  an  order,  require  such  person  or 
corporation,  or  any  officer  or  member  thereof,  to  appear  at  a  speci- 
cified  time  and  place  before  him,  or  a  referee  appointed  by  him, 
and  answer  concerning  the  same. 

Witnesses  may  be  required  to  appear  and  testify  Iffefore  the 
judge  or  referee.  The  judge  or  referee  may  order  any  property 
of  a  judgment  debtor,  not  exempt  from  execution,  in  the  hands  of 
such  debtor  or  any  other  person,  or  due  to  the  judgment  debtor,  to 
be  applied  towards  the  satisfaction  of  the  judgment. 

If  it  appear  that  a  person  or  corporation,  alleged  to  have  prop- 
erty of  the  judgment  debtor,  or  to  be  indebted  to  him,  claims  an 
interest  in  the  property  adverse  to  him,  or  'denies  the  debt,  the 
Court  or  a  judge  may  authorize,  by  an  order  made  to  that  effect, 
the  judgment  creditor  to  institute  an  action  against  such  person  or 
corporation  for  the  recovery  of  such  interest  or  debt ;  and  the 
Court  or  judge  may,  by  order,  forbid  a  transfer  or  other  disposition 
of  such  interest  or  debt,  until  an  action  can  be  commenced  and 
prosecuted  to  judgment. 

If  any  person,  party,  or  witness  disobey  an  order  of  the  referee, 
properly  made,  in  proceedings  before  him,  he  may  be  punished  by 
the  Court  or  judge  ordering  the  reference,  for  a  contempt. 


T6  CALIFORNIA.  [Part  3. 


CHAPTER   XIV. 


COSTS. 

The  general  rule  is,  that  judgment  carries  costs. 

When,  in  an  action  for  the  recovery  of  money  only,  the  defend- 
ant alleges  in  his  answer  that  before  the  commencement  of  the 
action  he  tendered  to  the  plaintiff  the  full  amount  to  which  he  was 
entitled,  and  thereupon  deposits  in  Court  for  the  plaintiff  the  amount 
so  tendered,  and  the  allegation  be  found  to  be  true,  the  plaintiff 
cannot  recover  costs,  but  must  pay  costs  to  the  defendant. 

When  several  actions  are  brought  on  one  bond,  undertaking, 
promissory  note,  bill  of  exchange,  or  other  instrument  in  writing, 
or  in  any  other  case  for  the  same  cause  of  action,  against  several 
parties  who  might  have  been  joined  as  defendants  in  the  same 
action,  no* costs  can- be  allowed  to  the  plaintiff  in  more  than  one  of 
such  actions,  which  may  be  at  his  election,  if  the  parties  proceeded 
against  in  the  other  actions  were,  at  the  commencement  of  the 
previous  action,  openly  within  this  State ;  but  the  disbursements  of 
the  plaintiff  must  be  allowed  to  him  in  each  action. 

SECURITY  FOR  COSTS. 

When  the  plaintiff  in  an  action  resides  out  of  the  State,  or  is  a 
foreign  corporation,  security  for  the  costs  and  charges,  which  may 
be  awarded  against  such  plaintiff,  may  be  required  by  the  defendant. 
When  required,  all  proceedings  in  the  action  must  be  stayed  until 
an  undertaking,  executed  by  two  or  more  persons,  is  filed  with  the 
clerk,  to  the  effect  that  they  will  pay  such  costs  and  charges  as 
may  be  awarded  against  the  plaintiff  by  judgment,  or  in  the  pro- 
gress of  the  action,  not  exceeding  the  sum  of  three  hundred  dollars. 
A  new  or  additional  undertaking  may  be  ordered  by  the  Court  or 
judge,  upon  proof  that  the  original  undertaking  is  insufficient 
security,  and  proceedings  in  the  action  stayed  until  such  new  or 
additional  undertaking  is  executed  and  filed.  If  such  security  is 


Chap.  15.]  CALIFORNIA.  77 

not  given  by  the  plaintiff  within  thirty  days  after  notice  that  secur- 
ity is  required,  the  Court  or  judge  may  order  the  action  dismissed. 


CHAPTER   XV. 

APPEALS  IN  CIVIL  ACTIONS. 

APPEALS  IN  GENERAL. 

Within  what  time  appeals  may  be  taken : 

1.  From  a  final  judgment  in  an  action  or  special  proceeding 
commenced  in  the  Court  in  which  the  same  is  rendered,  within  one 
year  after  the  entry  of  judgment.     But  an  exception  to  the  decision 
or  verdict,  on  the  ground  that  it  is  not  supported  by  the  evidence, 
cannot  be  reviewed  on  an  appeal  from  the  judgment,  unless  the 
appeal  is  taken  within  sixty  days  after  the  rendition  of  the  judg- 
ment. 

2.  From  a  judgment  rendered  on  an  appeal  from  an  inferior 
Court,  within  ninety  days  after  the  entry  of  such  judgment. 

3.  From  an  order  granting  or  refusing  a  new  trial ;  from  an  order 
granting  or  dissolving  an  injunction ;  from  an  order  refusing  to 
grant  or  dissolve  an  injunction ;  from  an  order  dissolving  or  refus- 
ing to  dissolve  an  attachment ;  from  an  order  granting  or  refusing 
to  grant  a  change  of  the  place  of  trial ;  from  any  special  order 
made  after  the  final  judgment,  and  from  an  interlocutory  judgment 
in  actions  for  partition  of  real  property,  within  sixty  days  after  the 
order  or  interlocutory  judgment  is  made  and  entered  in  the  minutes 
of  the  Court,  or  filed  with  the  clerk. 

An  appeal  is  taken  by  filing  with  the  clerk  of  the  Court  in  which 
the  judgment  or  order  appealed  from  is  entered,  a  notice  stating 
the  appeal  from  the  same,  or  some  specific  part  thereof,  and  serving 
a  similar  notice  on  the  adverse  party  or  his  attorney.  The  order  of 


78  CALIFORNIA.  [Part  3. 

service  is  immaterial,  but  the  appeal  is  ineffectual  for  any  purpose 
unless  within  five  days  after  service  of  the  notice  of  appeal,  an  un- 
dertaking be  filed,  or  a  deposit  of  money  be  made  with  the  clerk, 
as  hereinafter  provided,  or  the  undertaking  be  waived  by  the  ad- 
verse party  in  writing. 

The  undertaking  on  appeal- must  be  in  writing,  and  must  be  ex- 
ecuted on  the  part  of  the  appellant  by  at  least  two  sureties,  to  the 
effect  that  the  appellant  will  pay  all  damages  and  costs  which  may 
be -awarded  against  him  on  the  appeal,  or  on  a  dismissal  thereof, 
not  exceeding  three  hundred  dollars  ;  or  that  sum  must  be  depos- 
ited with  the  clerk  with  whom  the  judgment  or  order  was  entered, 
to  abide  the  event  of  the  appeal. 

If  the  appeal  be  from  a  judgment  or  order  directing  the  payment 
of  money,  it  does  not  stay  the  execution  of  the  judgment  or  order, 
unless  a  written  undertaking  be  executed  on  the  part  6f  the  appel- 
lant, by  two  or  more  sureties,  to  the  effect  that  they  are  bound  in 
double  the  amount  named  in  the  judgment  or  order,  that  if  the 
judgment  or  order  appealed  fif>m,  or  any  part  thereof,  be  affirmed, 
or  the  appeal  be  dismissed,  the  appellant,  will  pay  the  amount 
directed  to  be  paid  by  the  judgment  or  order,  or  the  part  of  such 
amount  as  to  which  the  judgment  or  order  is  affirmed,  if  affirmed 
only  in  part,  and  all  damages  and  costs  which  may  be  awarded 
against  the  appellant  upon  the  appeal ;  and  that  if  .the  appellant 
does  not  make  such  payment  within  thirty  days  after  the  filing  of 
the  remittitur  from  the  Supreme  Court,  in  the  Court  from  which 
the  appeal  is  taken,  judgment  may  be  entered  on  motion  of  the  re- 
spondent in  his  favor  against  the  sureties,  for  such  amount,  together 
with  the  interest  that  may  be  due  thereon,  and  the  damages  and 
costs  which  may  be  awarded  against  the  appellant  upon  the  appeal. 
If  the  judgment  or  order  appealed  from  be  for  a  greater  amount 
than  two  thousand  dollars,  and  the  sureties  do  not  state  in  their 
affidavits  of  justification  accompanying  the  undertaking,  that  they 
are  each  worth  the  sum  specified  in  the  undertaking,  the  stipulation 
may  be  that  the  judgment  to  be  entered  against  the  sureties  shall 
be  for  such  amounts  only  as  in  their  affidavits  they  may  state 
that  they  are  severally  worth,  and  judgment  may  be  entered 
against  the  sureties  by  the  Court  from  which  the  appeal  is  taken, 


Chap.  15.]  CALIFORNIA.  79 , 

pursuant  to  the  stipulations  therein  designated.  When  the  judg- 
ment, or  order,  appealed  from  is  made  payable  in  a  specified  kind 
of  money  or  currency,  the  judgment  entered  against  the  sureties 
upon  the  undertaking  must  be  made  payable  in  the  same  kind  of 
money  or  currency. 

When  an  appeal  is  perfected,  it  stays  all  further  proceedings  in 
the  Court  below,  upon  the  judgment  or  order  appealed  from,  or 
upon  the  matters  embraced  therein,  and  releases  from  levy  property 
which  has  been  levied  upon  under  execution  issued  upon  such  judg- 
ment. 

The  adverse  party  may  except  to  the  sufficiency  of  the  sureties 
to  the  undertakings  on  appeal. 

The  foregoing  provisions  in  regard  to  appeals  do  not  apply  to  ap- 
peals to  the  County  Court  from  Justices'  or  Police  Courts. 

APPEALS  FROM  DISTRICT  COURTS. 

An  appeal  may  be  taken  to  the  'Supreme  Court  from  the  Dis- 
trict Courts  in  the  following  cases : 

1.  From  a  final  judgment  entered  in  an  action  or  special  pro- 
ceeding commenced  in  those  Courts,  or  brought  into  those  Courts 
from  other  Courts. 

2.  From  an  order  granting  or  refusing  a  new  trial ;  from  an  or- 
der granting  or  dissolving  an  injunction  ;  from  an  order  refusing  to 
grant  or  dissolve  an  injunction ;  from  an  order  dissolving,  or  refus- 
ing to  dissolve,  an  attachment ;  from  an  order  changing,  or  refusing 
-to  change,  the  place  of  trial ;  from  any  special  order  made  after 
final  judgment,  and  from  such  interlocutory  judgment  in  actions  for 
partition  as  determines  the  rights  and  interests  of  the  respective 
parties,  and  directs  partition  to  be  made. 

APPEALS  FROM  COUNTY  COURTS. 

An  appeal  may  be  taken  to  the  Supreme  Court  from  the  County 
Courts  in  the  following  cases  : 

1.  From  a  final  judgment  in  an  action  of  forcible  entry  and  de- 
tainer ;  in  an  action  to  prevent  or  abate  a  nuisance ;  in  a  proceed- 
ing in  insolvency  ;  and  in  any  special  cases  and  proceedings  ;  and 


80  CALIFORNIA.  [Part  3. 

in  cases  which  involve  the  legality  of  any  tax,  impost,  assessment, 
toll,  or  municipal  fine,  or  in  which  the  demand,  exclusive  of  inter- 
est, or  the  value  of  the  property  in  controversy,  amounts  to  three 
hundred  dollars. 

2.  From  an  order  granting  or  refusing  a  new.  trial  in  the  cases 
herein  designated,  and  from  any  special  order  made  after  final  judg- 
ment in  such  cases. 

APPEALS  FROM  PROBATE  COURTS. 

An  appeal  may  be  taken  to  the  Supreme  Court  from  a  judgment 
or  order  of  the  Probate  Court  as  follows  : 

1.  Granting,  or  refusing,  or  revoking  letters  testamentary,  or  of 
administration,  or  of  guardianship. 

2.  Admitting,  or  refusing  to  admit,  a  will  to  probate. 

3.  Against  or  in  favor  of  the  validity  of  a  will,  or  revoking  the 
probate  thereof. 

4.  Against  or  in  favor  of  setting  apart  property,  or  making  an 
allowance  for  a  widow  or  child. 

5.  Against  or  in  favor  of  directing  the  partition,  sale,  or  convey- 
ance of  real  property. 

6.  Settling   an   account  of  an  executor,  or   administrator,  or 
guardian. 

7.  Kefusing,  allowing,  or  directing  the  distribution  or  partition 
of  an  estate,  or  any  part  thereof,  or  the  payment  of  a  debt,  claim, 
legacy,  or  distributive  share. 

8.  Overruling  a  motion  for  new  trial. 

9.  Confirming  a  report  of  an  appraiser  setting  apart  the  home- 
stead. 

APPEALS  FROM  JUSTICES'. OR  POLICE  COURTS. 

Anv  party  dissatisfied  with  a  judgment  rendered  in  a  civil  action 
in  a  Police  or  Justice's  Court  may  appeal  therefrom  to  the  County 
Court  of  the  county,  at  any  time  within  thirty  days  after  the 
rendition  of  the  judgment. 

Parties  appealing  on  questions  of  law  alone,  must  prepare  a 
statement  for  the  justice  or  judge.  When  the  appeal  is  taken  on 


Chap.  15.]  CALIFORNIA.  81 

questions  of  fact,  or  questions  of  both  law  and  fact,  no  statement 
need  be  made,  but  the  action  must  be  tried  anew  in  the  County 
Court. 

An  appeal  from  a  Justice's  or  Police  Court  is  not  effectual  for 
any  purpose,  unless  an  undertaking  be  filed,  with  two  or  more 
sureties,  in  the  sum  of  one  hundred  dollars,  for  the  payment  of 
the  costs  on  the  appeal ;  or  if  a  stay  of  the  proceedings  be  claimed, 
in  a  sum  equal  to  twice  the  amount  of  the  judgment,  including  costs, 
when  the  judgment  is  for  the  payment  of  money ;  or  twice  the  value 
of  the  property,  including  costs,  when  the  judgment  is  for  the 
recovery  of  specific  personal  property  ;  and  must  be  conditioned, 
when  the  action  is  for  the  recovery  of  money,  that  the  appellant 
will  pay  the  amount  of  the  judgment  appealed  from,  and  all  costs, 
if 'the  appeal  be  withdrawn  or  dismissed,  or  the  amount  of  any 
judgment  and  all  costs  that  may  be  recovered  against  him  in  the 
County  Court.  When  the  action  is  for  the  recovery  of  specific 
personal  property,  the  undertaking  must  be  conditioned  that  the 
appellant  will  pay  the  judgment  and  costs  appealed  from,  and  obey 
the  order  of  the  Court  made  therein,  if  the  appeal  be  withdrawn 
or  dismissed,  or  any  judgment  and  costs  that  may  be  recovered 
against  him  in  said  action  in  the  County  Court,  and  will  obey  any 
order  made  by  the  Court  therein.  A  deposit  of  the  amount  of  the 
judgment,  including  all  costs,  appealed  from,  or  of  the  value  of  the 
property,  including  all  costs,  in  actions  for  the  recovery  of  specific 
personal  property,  with  the  justice  or  judge,  is  equivalent  to  the 
filing  of  the  undertaking.  The  adverse  party  may  except  to  the 
sufficiency  of  the  sureties  within  five  days  after  the  filing  of  the 
undertaking,  and  unless  they  or  other  sureties  justify  before  the 
justice  or  judge  before  whom  the  appeal  is  taken,  within  five  days 
thereafter,  upon  notice  to  the  adverse  party,  to  the  amounts  stated 
in  their  affidavits,  the  appeal  must  be  regarded  as  if  no  such  under- 
taking had  been  given. 

On  filing  the  above  undertaking,  execution  must  be  stayed.  For 
a  failure  to  prosecute  an  appeal,  or  unnecessary  delay  in  bringing 
it  to  a  hearing,  the  County  Court,  after  notice,  may  order  the 
appeal  to  be  dismissed. 

6 


82  CALIFORNIA.  [Part  3. 


CHAPTER  XVI. 


NEW  TRIALS. 

A  new  trial  may  be  granted  for  any  of  the  following  causes, 
materially  affecting  the  substantial  rights  of  the  party  aggrieved :  • 

1.  Irregularity  in  the  proceedings  of  the  Court,  jury,  or  adverse 
party,  or  any  order  of  the  Court,  or  abuse  of  discretion,  by  which 
either  party  was  prevented  from  having  a  fair  trial. 

2.  Misconduct  of  the  jury ;  and  whenever  any  one  or  more  of 
the  jurors  have  been  induced  to  assent  to  any  general  or  special 
verdict,  or  to  finding  on  any  question  submitted  to  them  by  the 
Court,  by  a  resort  to  the  determination  of  chance,  such  misconduct 
may  be  proved  by  the  affidavit  of  any  one  of  the  jurors. 

3.  Accident  or  surprise,  which  ordinary  prudence  could  not  have 
guarded  against. 

4.  Newly  discovered  evidence,  material  for  the  party  making  the 
application,  which  he  could  not,  with  reasonable  diligence,  have  dis- 
covered and  produced  at  the  trial. 

5.  Excessive  damages,  appearing  to  have  been  given  under  the 
influence  of  passion  or  prejudice. 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or  other 
-decision,  or  that  it  is  against  law. 

7.  Error  in  law  occurring  at  the  trial  and  excepted  to  by  the 
.party  making  the  application. 

The  party  intending  to  move  for  a  new  trial  must,  within  ten  days 
.after  the  verdict,  if  the  action  were  tried  by  a  jury,  or  after  notice 
of  the  decision  of  the  Court  or  referee,  if  the  action  were  tried 
without  a  jury,  file  with  the  Clerk  and  serve  upon  the  adverse 
party  a  notice  of  his  intention,  designating  the  ground  upon  which 
.the  motion  will  be  made. 


Chap.  17.]  CALIFORNIA.  83 


CHAPTER  XVII. 

ESTATES  OF  DECEASED  PERSONS. 

Order  of  persons  entitled  to  administer : 

•  1.   The  surviving  husband  or  wife,  or  some  competent  person 
whom  he  or  she  may  request  to  have  appointed. 

2.  The  children. 

3.  The  father  or  mother. 

4.  The  brothers. 

5.  The  sisters. 

6.  The  grandchildren. 

7.  The  next  of  kin  entitled  to  share  in  the  distribution  of  the  es- 
tate. 

8.  The  creditors. 

9.  The  public  administrator. 

10.  Any  person  legally  competent. 

If  the  deceased  was  a  member  of  a  partnership  at  the  time  of  his 
decease,  the  surviving  partner  must  in  no  case  be  appointed  admin- 
istrator of  his  estate. 

A  married  woman  must  not  be  appointed  administratrix. 

When  a  creditor  is  claiming  letters,  the  Court  may,  in  its  discre- 
tion, at  the  request  of  another  creditor,  grant  letters  to  any  other 
person  legally  competent. 

Letters  of  administration  must  be  granted  to  any  applicant, 
though  it  appears  that  there  are  other  persons  having  better  rights 
to  the  administration,  when  such  persons  fail  to  appear  and  claim 
the  issuing  of  letters  to  themselves. 

The  administrator  must  give  bonds,  with  two  or  more  sufficient 
sureties,  to  be  approved  by  the  probate  judge,  the  penalty  to  be 
not  less  than  twice  the  value  of  the  personal  property,  and  twice 
the  probable  value  of  the  annual  rents,  profits,  and  issues  of  the 
real  property :  additional  bonds  may  be  required,  when  a  sale  of 
real  estate  is  ordered. 


84  CALIFORNIA.  [Part  3. 

When  a  person  dies  leaving  a  widow  or  minor  children,  until 
letters  are  granted  and  the  inventory  is  returned,  they  are  entitled 
to  remain*  in  possession  of  the  homestead,  of  the  wearing  apparel 
of  the  family,  and  of  all  the  household  furniture  of  the  decedent, 
and  are  also  entitled  to  a  reasonable  provision  for  their  support,  to 
be  allowed  by  the  probate  judge. 

The  Court  or  probate  judge  may  set  apart  for  the  use  of  the 
surviving  husband  or  wife,  or  the  minor  children  of  the  decedent, 
all  property  exempt  from  execution,  including  the  homestead 
selected,  designated  and  recorded.  If  no  homestead  has  been 
selected,  designated  and  recorded,  the  judge  or  the  Court  must 
select,  designate,  set  apart  and  cause  to  be  recorded,  a  homestead 
for  the  use  of  the  persons  before  named. 

If  the  amount  set  apart  be  insufficient  for  the  support  of  the 
widow  and  children,  or  either,  the  Probate  Court  or  judge  must 
make  such  reasonable  allowance  out  of  the  estate  as  shall  be  neces- 
sary for  the  maintenance  of  the  family,  according  to  their  circum- 
stances, during  the  progress  of  the  settlement  of  the  estate  ;  which, 
in  case  of  an  insolvent  estate,  must  not  be  longer  than  one  year 
after  granting  of  letters. 

If  on  the  return  of  the  inventory  of  the  estate  of  an  intestate,  it 
appears  that  the  value  of  the  whole  estate  does  not  exceed  the  sum 
of  fifteen  hundred  dollars,  it  must  be  assigned  for  the  use  of  the 
widow  and  minor  child  or  children,  after  the  payment  of  the 
expenses  of  his  last  illness,  funeral  charges,  and  the  expenses  of 
the  administration. 

If  it  appear  that  the  value  of  the  whole  estate  does  not  exceed 
the  sum  of  three  thousand  dollars,  there  may  by  a  summary  ad- 
ministration of  the  estate,  and  an  order  of  distribution  at  the  end 
of  six  months  after  the  issuing  of  letters. 

Claims  against  the  estate  must  be  presented  to  the  'executor  or 
administrator  within  the  time  specified  in  the  notice  to  creditors, 
requesting  them  to  present  their  claims ;  when  the  value  of  the 
estate  exceeds  ten  thousand  dollars,  the  time  expressed  in  the  no- 
tice must  be  ten  months  ;  when  it  does  not  exceed  ten  thousand 
dollars,  four  months.  If  a  claim  be  not  presented  within  the  time 
limited  in  the  notice,  it  is  Barred  forever  ;  except  where  it  is  made 
to  appear,  by  the  affidavit  of  the  claimant,  to  the  satisfaction  of 


Chap.  17.]  CALIFORNIA.  85 

• 

the  executor  or  administrator,  and  the  probate  judge,  that  the 
claimant  had  no  notice,  by  reason  of  being  out  of  the  State,  it 
may  be  presented  at  any  time  before  a  decree  of  distribution  is  en- 
tered. A  claim  for  a  deficiency  remaining  unpaid  after  a  sale  of 
property  of  the  estate,  mortgaged  or  pledged,  must  be  presented 
within  one  month  after  such  deficiency  is  ascertained. 

Every  claim  which  is  due  when  presented  to  the  administrator 
must  be  supported  by  the  affidavit  of  the  claimant,  or  some  one  in 
his  behalf,  that  the  amount  is  justly  due,  that  no  payments  have 
been  made  thereon  which  are  not  credited,  and  that  there  are  no 
offsets  to  the  same,  to  the  knowledge  of  the  claimant  or  affiant. 
If  the  claim  be  not  due  when  presented,  or  be  contingent,  the  par- 
ticulars of  such  claim  must  be  stated.  When  the  affidavit  is  made 
by  a  person  other  than  the  claimant,  he  must  set  forth  in  the  affi- 
davit the  reasons  why  it  is  not  made  by  the  claimant.  The  oath 
may  be  taken  by  any  officer  authorized  to  administer  oaths.  The 
executor  or  administrator  may  also  require  satisfactory  vouchers 
or  proofs  to  be  produced  in  support  of  the  claim.  If  the  estate  be 
insolvent,  no  greater  rate  of  interest  shall  be  allowed  upon  any 
claim,  after  the  first  publication  of  notice  to  creditors,  than  seven 
per  cent. 

When  a  claim,  accompanied  by  the ,  affidavit  required  as  afore- 
said, is  presented  to  the  executor  or  administrator,  he  must  endorse 
thereon  his  allowance  or  rejection,  with  the  day  and  date  thereof. 
If  he  allows  the  claim,  it  must  be  presented  to  the  probate  judge  for 
his  approval,  who  must,  in  the  same  manner,  indorse  upon  it  his  al- 
lowance or  rejection.  If  the  executor,  or  administrator,  or  judge,  re- 
fuse or  neglect  to  endorse  such  allowance  or  rejection,  for  ten  days 
after  the  claim  has  been  presented  to  him,  such  refusal  or  neglect  is 
equivalent  to  a  rejection  on  the  tenth  day ;  and  if  the  presentation 
be  made  by  a  notary,  the  certificate  of  such  notary,  under  seal,  is 
prima  facie  evidence  of  such  presentation  and  rejection.  If  the  claim 
be  presented  to  the  executor  or  administrator  before  the  expiration  of 
the  time  limited  for  the  presentation  of  claims,  the  same  is  presented 
in  time,  though  acted  upon  by  the  executor  or  administrator,  and  by 
the  judge,  after  the  expiration  of  such  time.  If  a  claim  be  payable 
in  a  particular  kind  of  money  or  currency,  it  shall,  if  allowed,  be 
payable  only  in  such  money  or  currency. 


86  CALIFORNIA.  [Part  3. 

• 

Every  claim  allowed  by  the  executor  or  administrator,  and 
approved  by  the  probate  judge,  or  a  copy  thereof,  must,  within 
thirty  days  thereafter,  be  filed  in  the  Probate  Court. 

If  the  claim  is  founded  on  a  bond,  bill,  note,  or  any  other 
instrument,  a  copy  of  such  instrument  must  accompany  the  claim, 
and  the  original  instrument  must  be  exhibited  if  demanded,  unless 
it  be  lost  or  destroyed  ;  in  which  case  the  claimant  must  accompany 
his  claim  by  his  affidavit,  containing  a  copy  or  particular  description 
of  such  instrument,  and  state  its  loss  or  destruction.  Book  accounts 
should  be  made  out  in  detail,  and  attached  to  the  affidavit  in  proof 
of  claim.  If  the  claim,  or  any  part  thereof,  is  secured  by  a  mort- 
gage or  other  lien  which  has  been  recorded  in  the  office  of  the 
recorder  of  the  county  in  which  the  land  affected  by  it  lies,  it  is 
sufficient  to  describe  the  mortgage  or  lien,  and  refer  to  the  date, 
volume,  and  page  of  its  record.  A  judgment  for  the  recovery  of 
money  must  be  presented  to  the  executor  or  administrator  like  any 
other  claim.  A  rejected  claim  must  be  sued  for  within  three  months 
from  date  of  its  rejection,  if  it  be  then  due,  or  within  two  months 
after  it  becomes  due  ;  otherwise  the  claim  is  forever  barred. 

Claims  barred  by  the  statute  of  limitations  must  not  be  allowed. 
No  holder  of  any  claim  against  an  estate  shall  maintain  any  action 
thereon,  unless  the  claim  is  first  presented  to  the  executor  or 
administrator. 

A  judgment  rendered  against  a  decedent  dying  after  verdict  or 
decision  on  an  issue  of  fact,  but  before  judgment  is  rendered  there- 
on, is  not  a  lien  on  the  real  property  of  the  decedent,  but  is  pay- 
able in  due  course  of  administration. 

A  judgment  rendered  against  an  executor  or  administrator,  upon 
any  claim  for  money  against  the  estate,  only  establishes  the  claim 
in  the  same  manner  as  if  it  had  been  duly  allowed,  and  the  judg- 
ment must  be  that  the  executor  or  administrator  pay  in  due  course 
of  administration  the  amount  ascertained  to  be  due.  A  certified 
copy  of  the  judgment  must  be  filed  in  the  Probate  Court.  No 
execution  must  issue  upon  such  judgment,  and  no  lien  is  created. 

Every  executor  or  administrator  must  render  a  full  account  and 
a  report  of  his  administration  at  the  expiration  of  one  year  from 
the  time  of  his  appointment. 


Chap.  17.]  CALIFORNIA.  87 

Upon  the  settlement  of  the  accounts  at  the  end  of  the  year,  as 
required,  the  Court  must  make  an  order  for  the  payment  of  the 
debts,  as  the  circumstances  of  the  estate  require. 

In  case  of  the  death  of  any  employer,  the  wages  of  each  miner, 
mechanic,  salesman,  clerk,  servant  and  laborer,  for  services  ren- 
dered within  the  sixty  days  next  preceding  the  death  of  the  em- 
ployer, not  exceeding  one  hundred  dollars,  rank  in  priority  next 
after  the  funeral  expenses,  expenses  of  the  last  sickness,  the  charges 
and  expenses  of  administering  upon  the  estate,  and  the  allowance 
to  the  widow  and  infant  children,  and  must  be  paid  before  other 
claims  against  the  estate  of  the  deceased  person. 

The  debts  of  the  estate  subject  to  the  foregoing  provision  must 
be  paid  in  the  following  order : 

1..  Funeral  expenses. 

2.  The  expenses  of  the  last  sickness. 

3.  Debts  having  preference  by  the  laws  of  the  United  States. 

4.  Judgments  rendered  against  the  decedent  in  his  lifetime,  and 
mortgages  in  the  order  of  their  date. 

•    5.  All  other  demands  against  the  estate. 

The  preference  in  the  case  of  a  mortgage  only  extends  to  the 
proceeds  of  the  property  mortgaged.  The  deficiency,  if  any,  must 
be  classed  with  the  other  demands  against  the  estate. 


CALIFORNIA.  [Part  8. 


CHAPTER  XVIII. 

DESCENTS. 

The  property,  both  real  and  personal,  of  one  who  dies  without 
disposing  of  it  by  will,  passes  to  the  heirs  of  the  intestate,  subject  to 
the  control  of  the  Probate  Court,  and  to  the  possession  of  any  ad- 
ministrator appointed  by  that  Court  for  the  purposes  of  administra- 
tion. 

When  any  person  having  title  to  any  estate  not  otherwise  limited 
by  marriage  contract  dies  without  disposing  of  the  estate  by  will, 
the  rule  of  distribution  is  as  follows,  subject  to  the  payment  of  his 
debts : 

1.  If  the  decedent  leave  a  surviving  husband  or  wife,  and  only 
one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares  to  the  sur- 
viving husband,  or  wife  and  child,  or  issue  of  such  child.     If  the 
decedent  leave  a  surviving  husband  or  wife,  and  more  than  one 
child  living,  or  one  child  living  and  the  lawful  issue  of  one  or  more 
deceased  children,  one  third  to  the  surviving  husband  or  wife,  and 
the  remainder  in  equal  shares  to  his  children,  and  to  the  lawful  issue 
of  any  deceased  child,  by  right  of  representation  ;  but  if  there  be 
no  child  of  the  decedent  living  at  his  death,  the  remainder  goes  to 
all  of  his  lineal  descendants ;  and  if  all  of  the  descendants  are  in 
the  same  degree  of  kindred  to  the  decedent,  they  share  equally, 
otherwise  they  take  according  to  the  right  of  representation.     If 
the  decedent  leave  no  surviving  husband  or  wife,  but  leave  issue, 
the  whole  estate  goes  to  such  issue  ;   and  if  such  issue  consists  of 
more  than  one  child  living,  or  one  child  living,  and  the  lawful  issue 
of  one  or  more  deceased  children,  then  the  estate  goes  in  equal 
shares  to  the  children  living,  or  to  the  child  living,  and  the  issue  of 
the  deceased  child  or  children  by  right  of  representation. 

2.  If  the   decedent  leave  no   issue   the   estate  goes  in   equal 
shares  to  the  surviving  husband  or  wife,  and  to  the  decedent's 
father.     If  there  be  no  father,  then  one-half  goes  in  equal  shares 
to  the  brothers  and  sisters  of  the  decedent,  and  to  the  children  of 


Chap.  18.]  CALIFORNIA.  89 

any  deceased  brother  or  sister,  by  right  of  representation ;  if  he 
leave  a  mother  also,  she  takes  an  equal  share  with  the  brothers 
and  sisters.  If  the  decedent  leave  no  issue,  nor  husband  nor  wife, 
the  estate  must  go  to  his  father.  • 

3.  If  there  be  no  issue,  nor  husband,  nor  wife,  nor  father,  then 
in  equal  shares  to  the  brothers  and  sisters  of  the  decedent,  and  to 
the  children  of  any  deceased  brother  or  sister,  by  right  of  repre- 
sentation ;  if  a  mother  survive,  she  takes  an  equal  share  with  the 
brothers  and  sisters.  , 

4.  If  the  decedent  leave  no  issue,  nor  husband,  nor  wife,  nor 
father,  and  no  brother  nor  sister  is  living  at  the  time*  of  his  death, 
the  estate  goes  to  his  mother,  to  the  exclusion  of  the  issue,  if  any, 
of  deceased  brothers  or  sisters. 

5.  If  the  decedent  leave  a  surviving  husband  or  wife,  and  no 
issue,  and  no  father,  nor  mother,  nor  brother,  nor  sister,  the  whole 
estate  goes  to  the  surviving  husband. 

6.  If  the  decedent  leave  no  issue,  nor  husband,  nor  wife,  and  no 
father,  nor  mother,  nor  brother,  nor  sister,  the  estate  must  go  to 
the  next  of  kin,  in  equal  degree,  excepting  that  when  there  are  two 
or  more  collateral  kindred,  in  equal  degree,  but  claiming  through 
different  ancestors,  those  who  claimed  through  the  nearest  ancestors 
must  be  preferred  to  those  claiming  through  an  ancestor  more  re- 
mote ;  however, 

7.  If  the  decedent  leave  several  children,  or  one  child  and  the 
issue  of  one  or  more  children,  and  any  such  surviving  child  dies 
under  age,  and  not  having  been  married,  all  the  estate  that  came 
to  the  deceased  child  by  inheritance  from  such  decedent  descends 
in  equal  shares  to  the  other  children  of  the  same  parent,  and  to  the 
issue  of  any  such  other  children  who  are  dead,  by  right  of  repre- 
sentation. 

8.  If,  at  the  death  of  such  child,  who  dies  under  age,  not  having 
been  married,  all  the  other  children  of  his  parents  are  also  dead, 
and  any  of  them  have  left  issue,  the  estate  that  came  to  such  child, 
by  inheritance  from  his  parent,  descends  to  the  issue  of  all  other 
children  of  the  same  parent ;  and  if  all  the  issue  are  in  the  same 
degree  of  kindred  to  the  child,  they  share  the  estate  equally,  other- 
wise they  take  according  to  the  right  of  representation. 


90  CALIFORNIA.  [Part  3. 

9.  If  the  decedent  leave  no  husband,  wife,  or  kindred,  the  estate 
escheats  to  the  State  for  the  support  of  common  schools. 

The  above  provisions,  as  to  the  inheritance  of  the  husband  and 
wife  from  each  other,  apply  "only  to  the  separate  property  of  the 
decedents. 

Upon  the  death  of  the  wife,  the  entire  community  property, 
without  administration,  belongs  to  the  surviving  husband,  except 
such  portion  thereof  as  may  have  been  set  apart  to  her  by  judicial 
decree,  for  her  support  and  maintenance,  which  portion  is  subject 
to  her  testamentary  disposition,  and  in  the  absence  of  such  disposi- 
tion goes  to  her  descendants  or  heirs,  exclusive  of  her  husband. 

Upon  the  death  of  the  husband,  one-half  of  the  community  prop- 
erty goes  to  the  surviving  wife,  and  the  other  half  is  subject  to  the 
testamentary  disposition  of  the  husband,  and  in  the  absence  of  such 
disposition  goes  to  his  descendants,  equally,  if  su«h  descendants 
are  in  the  same  degree  of  kindred  to  the  decedent ;  otherwise, 
according  to  the  right  of  representation ;  and  in  the  absence  of 
both  such  dispositions,  and  such  descendants,  is  subject  to  distribu- 
tion in  the  same  manner  as  the  separate  property  of  the  husband. 
In  case  of  the  dissolution  of  the  community  by  the  death  of  the  hus- 
band, the  entire  community  property  is  equally  subject  to  his  debts, 
the  family  allowance,  and  the  charges  and  expenses  of  administra- 
tion. 

Every  illegitimate  child  is  an  heir  of  the  person  who,  in  writing, 
signed  in  the  presence  of  a  competent  witness,  acknowledges  him- 
self to  be  the  father  of  such  child  ;  and  in  all  cases  is  an  heir  of 
his  mother ;  and  inherits  his  or  her  estate,  in  whole  or  in  part,  as 
the  case  may  be,  in  the  same  manner  as  if  he  had  been  born  in 
lawful  wedlock ;  but  he  does  not  represent  his  father  or  mother  by 
inheriting  any  part  of  the  estate  of  his  or  her  kindred,  either  lineal 
or  collateral,  unless,  before  his  death,  his  parents  shall  have  inter- 
married, and  his  father,  after  such  marriage,  acknowledges  him  as 
his  child,  or  adopts  him  into  his  family  ;  in  which  case  such  child 
and  all  the  legitimate  children  are  considered  brothers  and  sisters, 
and  on  the  death  of  either  of  them  intestate,  and  without  issue, 
the  others  inherit  his  estate,  and  are  heirs  as  hereinbefore  provided, 
in  like  manner  as  if  all  the  children  had  been  legitimate  ;  saving  to 


Chap.  19.]  CALIFORNIA.  91 

the  father  and  mother  respectively  their  rights  in  the  estates  of  all 
the  children  in  like  manner  as  if  all  had  been  legitimate.  /The 
issue  of  all  marriages  null  in  law,  or  dissolved  by  divorce,  are  legiti- 
mate. 

If  an  illegitimate  child,  who  has  not  been  acknowledged  or 
adopted  by  his  father,  dies  intestate,  without  lawful  issue,  his 
estate  goes  to  his  mother,  or  in  case  of  her  decease,  to  her  heirs 
at  law. 


CHAPTER  XIX. 

LIENS   OF   MECHANICS   AND  OTHERS   UPON   REAL 
PROPERTY. 

Every  person  performing  labor  upon,  or  furnishing  materials  to 
be  used  in  the  construction,  alteration,  or  repair  of  any  mining 
claim,  building,  wharf,  bridge,  ditch,  flume,  tunnel,  fence,  ma- 
chinery, railroad,  wagon-road,  aqueduct  to  create  hydraulic  power, 
or  any  other  structure,  or  who  performs  labor  in  any  mining  claim, 
has  a  lien  upon  the  same  for  his  work  or  labor  done  or  materials 
furnished  by  each,  respectively,  whether  done  or  furnished  at  the 
instance  of  the  owner  of  the  building  or  other  improvement,  or  his 
agent ;  and  every  contractor,  sub-contractor,  architect,  builder,  or 
other  person  having  charge  of  any  mining,  or  of  the  construction, 
alteration,  or  repair,  either  in  whole  or  in  part,  of  any  building  or 
other  improvement,  as  aforesaid,  shall  be  held  to  be  the  agent  of 
the  owner. 

The  land  upon  which  any  building,  improvement,  or  structure  is 
constructed,  together  with  a  convenient  space  about  the  same,  or 
so  much  as  may  be  required  for  the  convenient  use  and  occupation 
thereof,  to  be  determined  by  the  Court  on  rendering  judgment,  is 
also  subject  to  the  lien,  if,  at  the  commencement  of  the  work,  or 


92  CALIFORNIA.  [Part  3. 

of  the  furnishing  of  the  materials  for  the  same,  the  land  belonged 
to  the  person  who  caused  said  building,  improvement,  or  structure 
to  be  constructed,  altered,  or  repaired ;  but  if  such  person  owned 
less  than  a  fee  simple  estate  in  such  land,  then  only  his  interest 
therein  is  subject  to  such  lien. 

Improvements  are  held  to  be  constructed  at  the  instance  of 
the  owner  of  the  lands,  unless  he,  within  three  days  after  he  shall 
have  received  knowledge  of  the  construction,  alteration,  or  repair, 
or  intended  construction,  alteration,  or  repair,  give  notice  that  he 
will  not  be  responsible  for  the  same,  by  posting  a  notice  in  writing 
on  the  premises  in  a  conspicuous  place  to  that  effect. 

Such  liens  are  preferred  to  any  lien,  mortgage  or  other  incum- 
brance  which  may  have  attached  subsequent  to  the  time  when  the 
building,  improvement  or  structure  was  commenced,  work  done,  or 
materials  were  commenced  to  be  furnished ;  also,  to  any  lien,  mort- 
gage or  other  incumbrance,  of  which  the  lien-holder  had  no  notice, 
and  which  was  unrecorded  at  the  time  the  building,  improvement . 
or  structure  was  commenced,  work  done,  or  the  materials  were 
commenced  to  be  furnished. 

Every  original  contractor,  within  sixty  days  after  the  completion 
of  his  contract,  and  every  person,  save  the  original  contractor, 
claiming  the  benefit  of  this  chapter,  must,  within  thirty  days  after 
the  completion  of  any  building,  improvement  or  structure,  or  after 
the  completion  of  the  alteration  or  repair  thereof,  or  the  perform- 
ance of  any  labor  in  a  mining  claim,  file  for  record  with  the  county 
recorder  of  the  county  in  which  such  property,  or  some  part  thereof, 
is  situated,  a  claim  containing  a  statement  of  his  demand,  after  de- 
ducting all  just  credits  and  offsets,  with  the  name  of  the  owner  or 
reputed  owner,  'if  known,  and  also  the  name  of  the  person  by 
whom  he  was  employed,  or  to  whom  he  furnished  the  materials, 
with  a  statement  of  the  terms,  time  given,  and  conditions  of  his 
contract,  and  also  a  description  of  the  property  to  be  charged  with 
the  lien,  sufficient  for  identification,  which  claim  must  be  verified 
by  the  oath  of  himself  or  of  some  other  person. 

The  lien  does  not  bind  any  building,  mining  claim,  improvement 
or  structure,  for  a  longer  period  than  ninety  days  after  the  same 
has  been  filed,  unless  proceedings  be  commenced  in  a  proper  Court 


Chap.  19.]  CALIFORNIA.  93 

within  that  time  to  enforce  the  same ;  or  if  a  credit  be  given,  then 
ninety  days  after  the  expiration  of  such  credit ;  hut  no  lien  contin- 
ues in  force  for  a  longer  time  than  two  years  from  the  time  the 
work  is  completed,  by  any  agreement  to  give  credit. 

In  every  case  in  which  different  liens  are  asserted  against  any 
property,  the  Court  in  the  judgment  must  declare  the  rank  of  each 
lien  or  class  of  liens,  which  shall  be  in  the  following  order,  viz : 
First.  All  persons  other  than  the  original  contractors  and  sub-con- 
tractors. Second.  The  sub-contractors.  Third.  The  original 
contractors.  And  the  proceeds  of  the  sale  of  the  property  must 
be  applied  to  each  lien  or  class  of  liens  in  the  order  of  its  rank ; 
and  whenever,  on  the  sale  of  the  property  subject  to  the  lien,  there 
is  a  deficiency  of  proceeds,  judgment  may  be  docketed  for  the  de- 
ficiency. 

Any  number  of  persons  claiming  liens  may  join  in  the  same  ac- 
tion, and  when  separate  actions  are  commenced,  the  Court  may 
consolidate  them.  The  Court  may  also  allow  as  part  of  the  costs, 
the  moneys  paid  for  filing  and  recording  the  lien,  and  reasonable 
attorney's  fees  in  the  District  and  Supreme  Courts.  Whenever 
materials  shall  have  been  furnished  for  use  in  the  construction,  al- 
teration, or  repair  of  any  building  or  other  improvement,  such  ma- 
terials shall  not  be  subject  to  attachment,  execution,  or  other  legal 
process,  to  enforce  any  debt  due  by  the  purchaser  of  such  mate- 
rials, except  a  debt  due  for  the  purchase  money  thereof,  so  long  as 
in  good  faith  the  same  are  about  to  be  applied  to  the  construction, 
alteration,  or  repair  of  such  building,  mining  claim,  or  other  im- 
provement. 

In  a  judgment  enforcing  a  mechanic's  lien,  a  personal  judgment 
cannot  be  rendered  against  those  defendants  against  whom  no  per- 
sonal claim  is  established. 


94  CALIFORNIA.  [Part.  3. 

CHAPTER  XX. 

LIENS  FOR  SALARIES   AND  WAGES. 

In  all  assignments  of  property,  made  by  any  person  to  trustees 
or  assignees,  on  account  of  the  inability  of  the  person,  at  the  time 
of  the  assignment,  to  pay  his  debts,  or  in  proceedings  in  insolven- 
cy, the  wages  of  the  miners,  mechanics,  salesmen,  servants,  clerks 
or  laborers  employed  by  such  person,  to  the  amount  of  one  hun- 
dred dollars  each,  and  for  services  rendered  within  sixty  days  pre- 
viously, are  preferred  claims,  and  must  be  paid  by  such  trustees  or 
assignees  before  any  other  creditor  or  creditors  of  the  assignor. 

In  case  of  the  death  of  any  employer,  the  wages  of  each  miner, 
mechanic,  salesman,  clerk,  servant  and  laborer,  for  services  ren- 
dered within  the  sixty  days  next  preceding  the  death  of  the  em- 
ployer, not  exceeding  one  hundred  dollars,  rank  in  priority  next  af- 
ter the  funeral  expenses,  expenses  of  the  last  sickness,  the  charges, 
and  expenses  of  administering  upon  the  estate,  and  the  allowance 
to  the  widow  and  infant  children,  and  must  be  paid  before  other 
claims  against  the  estate  of  the  deceased  person. 

In  cases  of  executions,  attachments,  and  writs  of  a  similar  nature, 
issued  against  any  person,  except  for  claims  for  labor  done,  any 
miners,  mechanics,  salesmen,  servants,  clerks  and  laborers,  who 
ha^e  claims  against  tho  defendant  for  labor  done,  may  give  notice 
of  their  claims  and  the  amount  thereof,  sworn  to  by  the  person 
making  the  claim,  to  the  creditor  and  the  officer  executing  either 
of  such  writs,  at  any  time  before  the  actual  sale  of  the  property 
levied  upon  ;  and  unless  such  claim  is  disputed  by  the  debtor  or  a 
creditor,  such  officer  must  pay  to  such  person,  out  of  the  proceeds 
of  the  sale,  the  amount  each  is  entitled  to  receive  for  such  services 
rendered  within  the  sixty  days  next  preceding  the  levy  of  the  writ, 
not  exceeding  one  hundred  dollars.  If  any  or  all  of  the  claims  so 
presented,  and  claiming  preference,  are  disputed  by  either  the 
debtor  or  a  creditor,  the  person  presenting  the  same  must  commence 
an  action  within  ten  days  for  the  recovery*  thereof,  and  must  prose- 


Chaps.  21,  22.]  CALIFORNIA.  95 

cute  his  action  with  due  diligence,  or  be  forever  barred  from  any 
claim  of  priority  of  payment  thereof;  and  the  officer  shall  retain  pos- 
session of  so  much  of  the  proceeds  of  the  sale  as  may  be  necessary  to 
satisfy  such  claim,  until  the  determination  of  such  action ;  and  in 
case  judgment  be  had  for  the  claim,  or  any  part  thereof,  carrying 
costs,  the  costs  taxable  therein  shall  likewise  be  a  preferred  claim, 
with  the  same  rank  as  the  original  claim. 


CHAPTER  XXI. 

ARBITRATIONS. 

Persons  capable  of  contracting  -may  submit  to  arbitration 'any 
controversy  which  might  be  the  subject  of  a  civil  action  between 
them,  except  a  question  of  title  to  real  property  in  fee  or  for  life. 

The  submission  to  arbitration  must  be  in  writing,  and  may  be 
made  to  one  or  more  persons. 


CHAPTER  XXII. 

HOMESTEADS. 

i 

The  homestead  consists  of  the  dwelling-house  in  which  the  claim- 
ant resides,  and  the  land  on  which  the  same  is  situated,  selected  as 
hereinafter  provided.  It  may  be  used  as  a  place  of  business,  but 
actual  residence  is  essential. 

Homesteads  may  be  selected  and  claimed : 

1.  Not  exceeding  five  thousand  dollars  in  value,  by  any  head  of 
a  family. 


96  CALIFORNIA.  [Part  3. 

2.  Not  exceeding  one  thousand  dollars  in  value  by  any  other 
person. 

The  phrase  "  head  of  a  family,"  includes  within  its  meaning : 

1.  The  husband,  when  the  claimant  is  a  married  person. 
.     2.  Every  person  who  has  residing  on  the  premises  with  him  or 
her,  and  under  his  or  her  care  and  maintenance,  either: 

(1.)  His  or  her  minor  child,  or  the  minor  child  of  his  or  her 
deceased  wife  or^  husband. 

(2.)  A  minor  brother  or  sister,  or  the  minor  child  of  a  deceased 
brother  or  sister. 

(3.)  A  father,  mother,  grandfather,  or  grandmother. 

(4.)  The  father,  mother,  grandfather,  or  grandmother  of  a  de- 
ceased husband  or  wife. 

(5.)  An  unmarried  sister,  or  any  other  of  the  relatives  men- 
tioned who  have  attained  the  age  of  majority,  and  are  unable  to 
support  themselves. 

The  declaration  of  homestead  must  be  executed,  acknowledged, 
and  duly  recorded  in  the  office  of  the  recorder  of  the  county  in 
which  the  land  is  situated.  From  and  after  the  time  the  declara- 
tion is  filed  for  record,  the  premises  therein  described  constitute  a 
homestead. 

The  homestead  is  exempt  from  execution  or  forced  sale,  except 
in  satisfaction  of  judgments  obtained  : 

1.  Before  the  declaration  of  homestead  was  filed  for  record,  and 
which  constitute  liens  upon  the  premises. 

2.  Qn  debts  secured  by  mechanics',  laborers'  or  vendors'  liens 
upon  the  premises. 

3.  On  debts  secured  by  mortgages  upon  the  premises,  executed 
and  acknowledged  by  the   husband  and  wife,  or   an   unmarried 
claimant. 

4.  On  debts  secured  by  mortgages  upon  the  premises^  executed 
and  recorded  before  the  declaration  of  homestead  was  filed  for  rec- 
ord.   . 

The  homestead  of  a  married  person  cannot  be  conveyed  or  in- 
cumbered,  unless  the  instrument  is  executed  and  acknowledged  by 
both  husband  and  wife. 


Chap.  23.]  CALIFORNIA.  97 

If  the  homestead  exceed  in  value  the  amount  of  the  homestead 
exemption,  the  excess  may  be  reached  on  execution,  but  the  prop- 
erty must  first  be  appraised,  upon  application  to  the  county  judge. 

The  homestead  may  be  abandoned  by  filing  in  the  office  where 
the  declaration  is  filed  a  declaration  of  abandonment,  duly  ex- 
ecuted. 


CHAPTER   XXIII. 

CORPORATIONS. 

Corporations  are  either  public  or  private.  Public  corporations 
are  formed  or  organized  for  the  government  of  a  portion  of  the 
State  ;  all  other  corporations  are  private. 

Private  corporations  may  be  formed  by  the  voluntary  association 
of  any  five  or  more  persons.  A  majority  of  such  persons  must  be 
residents  of  this  State.  They  may  be  formed  for  any  purpose  for 
which  individuals  may  lawfully  associate  themselves. 

The  owners  of  shares  in  a  corporation  which  has  a  capital  stock 
are  called  stockholders.  If  a  corporation  has  no  capital  stock,  the 
corporators  and  their  successors  are  called  members. 

Each  stockholder  of  a  corporation  is  individually  and  personally 
liable  for  such  proportion  of  its  debts  and  liabilities  as  the  amount 
of  stock  or  shares  owned  by  him  bears  to  the  whole  of  the  sub- 
scribed capital  stock  or  shares  of  the  corporation,  and  for  a  like 
proportion  only  of  each  debt  or  claim  against  the  corporation.  Any 
creditor  of  the  corporation  may  institute  joint  or  several  actions 
against  any  of  its  stockholders,  for  the  proportion  of  his  claim  pay- 
able by  each,  and  in  such  action  the  Court  must  ascertain  the  pro- 
portion of  the  claim  or  debt  for  which  each  defendant  is  liable,  and 
a  several  judgment  must  be  rendered  against  each,  in  conformity 
therewith.  If  any  stockholder  pays  his  proportion  of  any  debt 
7 


ER 

if 

iroj 


98  CALIFORNIA.  [Part  3. 

due  from  the  corporation,  incurred  Awhile  he  was  such  stockholder, 
he  is  relieved  from  any  further  personal  liability  for  such  debt ;  and 
if  an  action  has  been  brought  against  him  upon  such  debt,  it  shall 
be  dismissed  as  to  him  upon  his  paying  the  costs,  or  such  propor- 
tion thereof  as  may  be  properly  chargeable  against  him.  The  lia- 
bility of  each  stockholder  is  determined  by  the  amount  of  stock  or 
shares  owned  by  him  at  the  time  the  debt  or  liability  was  incurred  ; 
and  such  liability  is  not  released  by  any  subsequent  transfer  of 
stock.  The  term  "  stockholder  "  shall  apply  not  only  to  such  per- 
sons as  appear  by  the  books  of  the  corporation  to  be  such,  but  also 
to  every  equitable  owner  of  stock,  although  the  same  appear  on  the 
books  in  the  name  of  another,  and  also  to  every  person  who  has  ad- 
vanced the  installments  or  purchase-money  of  stock  in  the  name  of 
a  minor,  so  long  as  the  latter  remains  a  minor  ;  and  also  to  every 
guardian  or  other  trustee  who  voluntarily  invests  any  trust  funds  in 
the  stock.  Trust  funds  in  the  hands  of  a  guardian  or  trustee  shall 
not  be  liable  under  the  provisions  of  this  section  by  reason  of  any 
such  investment,  nor  shall  the  person  for  whose  benefit  the  invest- 
ment is  made  be  responsible  in  respect  to  the  stock,  until  he  be- 
comes competent  and  able  to  control  the  same ;  but  the  responsi- 
bility in  the  guardian  or  trustee  making  the  investment  shall  con- 
tinue until  that  period.  Stock  held  as  collateral  security,  or  by  a 
trustee,  or  in  any  other  representative  capacity,  does  not  make  the 
holder  thereof  a  stockholder  within  the  meaning  of  this  section,  ex- 
cept in  the  cases  above  mentioned,  so  as  to  charge  him  with  any 
proportion  of  the  debts  or  liabilities  of  the  corporation ;  but  the 
pledger,  or  person,  or  estate  represented,  is  to  be  deemed  the  stock- 
holder as  respects  such  liability.  In  corporations  having  no  cap- 
ital stock,  each  member  is  individually  and  personally  liable  for  his 
proportion  of  its  debts  and  liabilities,  and  similar  actions  may  be 
brought  against  him,  either  alone  or  jointly  with  other  members,  to 
enforce  such  liability,  as  may  be  brought  against  one  or  more  stock- 
holders, and  similar  judgments  may  be  rendered. 


Chap.  24.]  CALIFORNIA.  99 


CHAPTER  XXIV. 

MODE  OF  TAKING  TESTIMONY  OF  WITNESSES. 

The  testimony  of  witnesses  is  taken  in  three  modes,  viz : 

1.  By  affidavit. 

2.  By  deposition. 

3.  By  oral  examination. 

An  affidavit  is  a  written  declaration,  under  oath,  made  without 
notice  to  the  adverse  party. 

A  deposition  is  a  written  declaration,  under  oath,  made  upon 
notice  to  the  adverse  party,  for  the  purpose  of  enabling  him  to  at- 
tend and  cross-examine. 

An  oral  examination  is  an  examination  in  presence  of  the  jury  or 
tribunal  which  is  to  decide  the  fact,  or  act  upon  it ;  the  testimony 
being  heard  by  the  jury  or  tribunal  from  the  lips  of  the  witness. 

Depositions  must  be  taken  in  the  form  of  question  and  answer, 
and  the  words  of  the  witness  must  be  written  down,  unless  the  par- 
ties agree  to  a  different  mode. 

Affidavits  are  used  to  verify  pleadings,  or  to  prove  service  of 
papers,  and  such  like. 

Testimony  of  witnesses  out  of  this  State  may  be 'taken  by  deposi- 
tion, at  any  time  after  service  of  summons,  or  the  appearance  of  the 
defendant. 

Testimony  of  witnesses  in  this  State  may  be  taken  by  deposition, 
in  any  action,  at  any  time  after  the  service  of  the  summons,  or  the 
appearance  of  the  defendant,  in  the  following  cases : 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding,  or  a 
person  for  whose  immediate  benefit  the  action  or  proceeding  is 
prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in  which  the  tes- 
timony is  to  be  used. 

3.  When  the  witness  is  about  to  leave  the  county  where  the  ac- 
tion is  to  be  tried,  and  will  probably  continue  absent  when  the  tes- 
timony is  required. 


100  CALIFORNIA.  [Part  3. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial,  is  'nev- 
ertheless too  infirm  to  attend. 

5.  When  the  testimony  is  required  upon  a  motion,  or  in  any 
other  case  where  the  oral  examination  of  the  witness  is  not  required. 

The  deposition  of  a  witness  out  of  this  State  may  be  taken  upon 
commission  issued  from  the  Court,  under  the  seal  of  the  Court, 
upon  an  order  of  the  judge  or  Court,  or  county  judge,  on  the  appli- 
cation of  either  party,  upon  five  days  previous  notice  to  the  other. 
If  issued  to  any  place  within  the  United  States,  it  may  be  directed 
to  a  person  agreed  upon  by  the  parties ;  or  if  they  do  not  agree,  to 
any  judge  or  justice  of  the  peace,  or  commissioner,  selected  by  the 
officer  issuing  it.  If  issued  to  any  country  out  of  the  United  States, 
it  may  be  directed  to  a  minister,  embassador,  consul,  vice-consul, 
or  consular  agent  of  the  United  States,  in  such  country,  or  to  any 
person  agreed  upon  by  the  parties. 

The  deposition  of  a  witness  in  this  State  may  be  taken  by  either 
party  before  a  judge  or  officer  authorized  to  administer  oaths,  on 
serving  upon  the  adverse  party  previous  notice  of  the  time  and 
place  of  examination,  together  with  a  copy  of  an  affidavit,  showing 
that  it  is  a  case  wherein  deposition  may  be  used.  Such  notice  must 
be  at  least  five  days,  adding  also  one  day  for  every  twenty-five 
miles  of  the  distance  of  the  place  of  examination  from  the  residence 
of  the  person  to  whom  the  notice  is  given,  unless,  for  a  cause 
shown,  a  judge, %by  order,  prescribe  a  shorter  time.  When  a 
shorter  time  is  prescribed,  a  copy  of  the  order  must  be  served  with 
the  notice. 


CHAPTER    XXV. 


JUDICIAL  RECORDS,  HOW  PROVED. 

A  judicial  record  is  the  record  or  official  entry  of  the  proceed- 
ings in  a  Court  of  justice,  or  of  the  official  act  of  a  judicial  officer, 
in  an  action  or  special  proceeding. 


Chap.  25.]  CALIFORNIA.  101 

A  judicial  record  of  this  State,  or  of  the  United  States,  may  be 
proved  by  the  production  of  the  original,  or  of  a  copy  thereof  cer- 
tified by  the  clerk  or  other  person  having  the  legal  custody  thereof. 
That  of  a  sister  State  may  be  proved  by  the  attestation  of  the 
clerk  and  the  seal  of  the  Court  annexed,  if  there  be  a  clerk  and 
seal,  together  with  a  certificate  of  the  chief  judge  or  presiding 
magistrate,  that  the  attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
attestation  of  the  clerk,  with  the  seal  of  the  Court  annexed,  if 
there  be  a  clerk  and  seal,  or  of  the  legal  keeper  of  the  record, 
with  the  seal  of  his  office  annexed,  if  there  be  a  seal,  together  with 
a  certificate  of  the  chief  judge  or  presiding  magistrate,  that  the 
person  making  the  attestation  is  the  clerk  of  the  Court  or  the  legal 
keeper  of  the  record  ;  and  in  either  case,  that  the  signature  of 
such  person  is  genuine,  and  that  the  attestation  is  in  due  form. 
The  signature  of  the  chief  judge  or  presiding  magistrate  must  be 
authenticated  by  the  certificate  of  the  minister  or  embassador,  or  a 
consul,  vice-consul,  or  consular  agent  of  the  United  States  in  such 
foreign  country. 

A  copy  of  the  judicial  record  of  a  foreign  country  is  also  ad- 
missible in  evidence,  upon  proof: 

1.  That  the  copy  offered    has  been  compared  by  the  witness 
with  the  original,  and  is  an  exact  transcript  of  the  whole  of  it. 

2.  That  such  original  was  in  the  custody  of  the  clerk  of  the 
Court  or  other  legal  keeper  of  the  same  ;  and, 

3.  That  the  copy  is  duly  attested  by  a  seal  which  is  proved  to 
be  the  seal  of  the  Court  where  the  record  remains,  if  it  be  the 
record  of  a  Court ;  or  if  there  be  no  such  seal,  or  if  it  be  not  a 
record  of  a  Court,  by  the.  signature  of  the  legal  keeper  of  the 
original. 


102  CALIFORNIA.  [Part  8. 

CHAPTER  XXVI. 

ACKNOWLEDGMENTS. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made 
at  any  place  within  this  State,  before  a  justice  or  clerk  of  the 
Supreme  Court. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made 
in  this  State  within  the  city,  county  or  district  for  which  the  officer 
was  elected  or  appointed,  before  either  : 

1.  A  judge  or  clerk  of  a  Court  of  record  ;  or, 

2.  A  mayor  or  recorder  of  a  city  ;  or, 

3.  A  court  commissioner  ;  or, 

4.  A  county  recorder  ;  or, 

5.  A  notary  public  ;  or, 

6.  A  justice  of  the  peace. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  this  State,  but  within  the  United  States,  and  within  the 
jurisdiction  of  the  officer,  before  either : 

1.  A  justice,  judge,  or  clerk  of  any  Court  of  record  of  the 
United  States  ;  or, 

2.  A  justice,  judge,  or  clerk  of  any  Court  of  record  of  any 
State ;  or, 

3.  A  commissioner  appointed  by  the  Governor  of  this  State  for 
that  purpose ;  or, 

4.  A  notary  public  ;  or, 

5.  Any  other  officer  of  the  State  where  the  acknowledgment  is 
made,  authorized  by  its  laws  to  take  such  proof  or  acknowledgment. 

A  proof  or  acknowledgment  of  an  instrument  may  be  made  with- 
out the  United  States,  before  either : 

1.  A  minister,  commissioner,  or  charge  d'affaires  of  the  United 
States,  resident  and  accredited  in  the  country  where  the  proof  or 
acknowledgment  is  made  ;  or, 

2.  A  consul,  vice-consul,  or  consular  agent  of  the  United  States, 
resident  in  the  country   where    the  proof  or  acknowledgment  is 
made;  or, 


Chap.  26.]  CALIFORNIA.  103 

3.  A  judge  of  a  Court  of  record  of  the  county  where  the  proof 
or  acknowledgment  is  made  ;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the  governor 
of  the  State,  pursuant  to  special  statutes  ;  or, 

5.  .A  notary  public. 

If  any  of  the  above  named  officers  are  authorized  by  law  to  ap- 
point a  deputy,  the  acknowledgment  or  proof  may  be  taken  by  such 
deputy  in  the  name  of  his  principal. 

The  acknowledgment  of  an  instrument  must  not  be  taken,  unless 
the  officer  taking  it  knows,  or  has  satisfactory  evidence,  on  the  oath 
or  affirmation  of  a  credible  witness,  that  the  person  making  such 
acknowledgment  is  the  individual  who  is  described  in  and  who 
executed  the  instrument ;  or  if  executed  by  a  corporation,  that  the 
person  making  such  acknowledgment  is  the  president  or  secretary 
of  such  corporation. 

The  acknowledgment  of  a  married  woman  to  an  instrument  pur- 
porting to  be  executed  by  her  must  not  be  taken,  unless  she  is  made 
acquainted  by  the  officer  with  the  contents  of  the  instrument  on  an 
examination  without  the  hearing  of  her  husband ;  nor  certified,  un- 
less she  thereupon  acknowledges  to  the  officer  that  she  executed 
the  instrument,  and  that  she  does  not  wish  to  retract  such  execution. 

GENERAL  FORM  OF  CERTIFICATE. 
STATE  OF 


ss. 
COUNTY  OF- 

On  this day  of ,  in  the  year ,  before  me,  [here 

insert  the  name  and  quality  of  the  officer]   personally  appeared 

,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to 

be  the  person  whose  name  is  subscribed  to  the  within  instrument, 
and  acknowledged  to  me  that  he  [or  they]  executed  the  same. 

FORM  OF  CERTIFICATE  OF  ACKNOWLEDGMENT  BY  MARRIED 

WOMAN. 

STATE  OF 


COUNTY  OF 

On  this day  of ,  in  the  year ,  before  me,  [here 


104  CALIFORNIA.  [Part  3. 

insert  the  name  and  quality  of  the  officer]   personally  appeared 

,  known  to  me   [or  proved  to  me  on  the  oath  of ]   to 

be  the  person  whose  name  is  subscribed  to  the  within  instrument, 
described  as  a  married  woman;  and  upon  an  examination  without 
the  hearing  of  her  husband,  I  made  her  acquainted  with  the.  con- 
tents of  the  instrument ;  and  thereupon  she  acknowledged  to  me 
that  she  executed  the  same,  and  that  she  does  not  wish  to  retract 
such  execution. 

FORM  OF  CERTIFICATE  OF  ACKNOWLEDGMENT  BY  A  CORPORATION. 


STATE  OF- 


COUNTY  OF 

On  this day  of ,  in  the  year ,  before  me   [here 

insert  the  name  and  quality  of  the  officer]   personally  appeared 

known  to  me  [or  proved  to  me  on  the  oath  of ] 

to  be  the  president  [or  the  secretary]  of  the  corporation  that  exe- 
cuted the  written  instrument,  and  acknowledged  to  me  that  such 
corporation  executed  the  same. 

FORM  OF  CERTIFICATE  OF  ACKNOWLEDGMENT  BY  ATTORNEY  IN 

FACT.     ' 


STATE  OF- 


COUNTY  OF- 


On  this day  of ,  in  the  year ,  before  me  [here 

insert  the  name  and  quality  of  the  officer]  personally  appeared 

,  known  to  me  [or  proved  to  me  on  the  oath  of ] 

to  be  the  person  whose  name  is  subscribed  to  the  within  instrument 

as  the  attorney  in  fact  of ,  and  acknowledged  to  me  that  he 

subscribed  the  name  of thereto,  as  principal,  and  his  own 

name  as  attorney  in  fact. 

Officers  must  authenticate  their  certificates  by  affixing  thereto 
their  signatures,  followed  by  the  names  of  their  offices  ;  also  their 
seals  of  office,  if  by  the  laws  of  the  State  or  country  where  the 
acknowledgment  or  proof  is  taken,  or  by  authority  of  which  they 
are  acting,  they  are  required  to  have  official  seals. 


Chap.  27.]  CALIFORNIA.  105 

The  certificate  of  proof  or  acknowledgment,  if  made  before  a 
justice  of  the  peace,  when  used  in  any  county  other  than  that  in 
which  he  resides,  must  be  accompanied  by  a  certificate  under  the 
hand  and  seal  of  the  clerk  of  the  county  in  which  the  justice  resides, 
setting  forth  that  such  justice,  at  the  time  of  taking  such  proof  or 
acknowledgment,  was  authorized  to  take  the  same,  and  that  the 
clerk  is  acquainted  with  his  hand-writing,  and  believes  that  the  sig- 
nature to  the  original  certificate  is  genuine. 


CHAPTER  XXVII. 

PARTNERSHIPS. 

Partnership  is  the  association  of  two  or  more  persons  for  the  pur- 
pose of  carrying  on  business  together,  and  dividing  its  profits  be- 
tween them. 

Every  partnership  that  is  not  formed  in  accordance  with  the  law 
concerning  mining  or  special  partnerships,  and  every  special  part- 
nership, so  far  only  as  the  general  partners  are  concerned,  is  a  gen- 
eral partnership. 

Every  general  partner  is  agent  for  the  partnership  in  the  trans- 
action of  its  business,  and  has  authority  to  do  whatever  is  necessary 
to  carry  on  such  business  in  the  ordinary  manner,  and  for  this  pur- 
pose may  bind  his  copartners  by  an  agreement  in  writing. 

A  partner,  as  such,  has  not  authority  to  do  any  of  the  follow- 
ing acts,  unless  his  copartners  have  wholly  abandoned  the  business 
to  him,  or  are  incapable  of  acting : 

1.  To  make  an  assignment  of  the  partnership  property  or  any 
portion  thereof  to  a  creditor,  or  to  a  third  person  in  trust,  for  the 
benefit  of  a  creditor  or  of  all  creditors. 

2.  To  dispose  of  the  good  will  of  the  business. 


106  CALIFORNIA.  [Part  3. 

3.  To  dispose  of  the  whole  of  the  partnership  property  at  once, 
unless  it  consists  entirely  of  merchandise. 

4.  To  do  any  act  which  would  make  it  impossible  to  carry  on  the 
ordinary  business  of  the  partnership. 

5.  To  confess  a  judgment. 

6.  To  submit  a  partnership  claim  to  arbitration. 

7.  To  do  any  act  which  is  not  necessary  to  carry  on  such  busi- 
ness in  the  ordinary  manner. 

Every  general  partner  is  liable  to  third  persons  for  all  the  obli- 
gations of  the  partnership,  jointly  with  his  copartners. 

Any  one  permitting  himself  to  be  represented  as  a  partner,  gen- 
eral or  special,  is  liable  as  such  to  third  persons  to  whom  such  rep- 
resentation is  communicated,  and  who,  on  the  faith  thereof,  give 
credit  to  the  partnership. 

The  liability  of  a  general  partner  for  the  acts  of  his  copartners 
continues,  even  after  a  dissolution  of  the  copartnership,  in  favor  of 
persons  who  have  had  dealings  with  and  given  credit  to  the  partner- 
ship during  its  existence,  until  they  have  had  personal  notice  of  the 
dissolution  ;  and  in  favor  of  other  persons  until  such  dissolution  has 
been  advertised  in  a  newspaper  published  in  every  county  where 
the  partnership,  at  the  time  of  its  dissolution,  had  a  place  of  busi- 
ness, if  a  newspaper  is  there  published,  to  the  extent  in  either  case 
to  which  such  persons  part  with  value  in  good  faith,  and  in  the 
belief  that  such  partner  is  still  a  member  of  the  firm. 

After  the  dissolution  of  a  partnership,  any  general  partner  may 
act  in  liquidation  of  its  affairs,  unless  the  liquidation  is  committed, 
by  consent  of  all  the  partners,  to  one  or  more  of  them  ;  and  in  such 
case  the  others  have  no  right  to  act  therein,  but  their  acts  are 
valid  in  favor  of  persons  parting  with  value,  in  good  faith,  upon 
credit  thereof. 

A  partner  authorized  to'  act  in  liquidation  may  collect,  compro- 
mise, or  release  any  debts  due  to  the  partnership,  pay  or  compro- 
mise any  claims  against  it,  and  dispose  of  the  partnership  property  ; 
and  he  may  indorse,  in  the  name  of  the  firm,  promissory  notes  or 
other  obligations  held  by  the  partnership,  for  the  purpose  of  collect- 
ing the  same  ;  but  he  cannot  create  any  new  obligation  in  its  name, 
or  revive  a  debt  against  the  firm  by  an  acknowledgment,  when  an 
action  thereon  is  barred. 


Chap.  27.]  CALIFORNIA.  107 

Except  as  hereafter  provided,  every  partnership  transacting 
business  in  this  State  under  a  fictitious  name,  or  a  designation 
not  showing  the  names  of  the  persons  interested  as  partners  in 
such  business,  must  file 'with  the  clerk  of  the  county  in  which  its 
principal  place  of  business  is  situated  a  certificate  stating  the  names 
in  full  of  all  the  members  of  such  partnership  and  their  places  of 
residence,  and  publish  the  same  once  a  week  for  four  successive 
weeks  in  a  newspaper  published  in  the  county,  if  there  be  one,  and 
if  there  be  none  in  such  county,  then  in  a  newspaper  published  in 
an  adjoining  county. 

A  commercial  or  banking  partnership,  established  and  transact- 
ing business  in  a  place  without  the  United  States,  may,  without 
filing  the  certificate,  or  making  the  publication  heretofore  men- 
tioned, use  in  this  State  the  partnership  name  used  by  it  there, 
although  it  be  fictitious,  or  do  not  show  the  names  of  the  persons 
interested  as  partners  in  such  business. 

The  certificate  filed  with  the  clerk  must  be  signed  by  the  part- 
ners, and  acknowledged  before  some  officer  authorized  to  take  the 
acknowledgment  of  conveyances  of  real  property.  Where  the 
partnership  is  formed  after  the  first  of  July,  eighteen  hundred 
and  seventy-four,  the  certificate  must  be  filed  and  the  publication 
made  within  one  month  after  the  formation  of  the  partnership,  or 
within  one  month  from  the  time  designated  in  the  agreement  of  its 
members  for  the  commencement  of  the  partnership.  Where  the 
partnership  has  been  formed  prior  to  the  first  of  July,  eighteen 
hundred  and  seventy-four,  the  certificate  must  be  filed  and  the 
publication  made  within  six  months  after  the  first  of  July  aforesaid. 

On  every  change  in  the  members  of  a  partnership  transacting 
business  in  this  State  under  a  fictitious  name,  or  a  designation 
which  does  not  show  the  names  of  the  persons  interested  as  part- 
ners in  its  business ;  except  in  the  case  of  a  commercial  or  bank- 
ing partnership,  established  and  transacting  business  in  a  place 
without  the  United  States,  as  well  as  in  this  State,  a  new  certificate 
must  be  filed  and  a  new  publication  made,  as  is  required  on  the 
formation  of  such  partnership. 

Persons  doing  business  as  partners  contrary  to  the  aforesaid 
provisons,  shall  not  maintain  any  action  upon  or  on  account  of  any 


108  CALIFORNIA.  [Part    . 

contract  made  or  transactions  had  in  their  partnership  name,  in  any 
Court  of  this  State,  until  they  have  first  filed  the  certificate  and 
made  the  publication  required.  Copies  of  the  entries  of  a  county 
clerk,  when  certified  by  him,  and  affidavits  of  publication  made  by 
the  printer,  publisher,  or  chief  clerk  of  a  newspaper,  are  presump- 
tive evidence  of  the  facts  therein  stated. 

Special  partnerships  are  formed  by  filing  a  certificate  with  the 
county  clerk  and  recorder,  severally  signed,  stating : 

1.  The  name  under  which  the  partnership  is  to  be  conducted. 

2.  The  general  nature  of  the  business  intended  to  be  transacted. 

3.  The  names  of  all  the  partners,  and  their  residences,  specify- 
ing which  are  general  and  which  are  special  partners. 

4.  The  amount  of  capital  which  each  special  partner  has  con- 
tributed to  the  common  stock. 

5.  The  periods  at  which  such  partnerships  shall  begin  and  end. 
Affidavits  must  be  made  and  filed,  setting  forth  the  amount  act- 
ually contributed  by  the  special  partners. 

The  certificate  mentioned  must  be  published  in  a  newspaper  in 
the  county,  once  a  week  for  four  successive  weeks. 

The  general  partners  in  a  special  partnership  are  liable  to  the 
same  extent  as  partners  in  a  general  partnership.  The  contribu- 
tion of  a  special  partner  to  the  capital  of  the  firm,  and  the  increase 
thereof,  is  liable  for  its  debts,  but  he  is  not  otherwise  liable  therefor. 


CHAPTER  XXYIII. 

MARRIED  WOMEN. 

All  property  of  the  wife  owned  by  her  before  marriage,  and  that 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with  the 
rents,  issues,  and  profits  thereof,  is  her  separate  property.  All 


Chap.  28.]  CALIFORNIA.  109 

property  owned  by  the  husband  before  marriage,  and  that  acquired 
afterwards  by  gift,  bequest,  devise,  or  descent,  with  the  rents, 
issues,  and  profits  thereof,  is  his  separate  property.  All  other 
property  acquired  after  marriage,  by  either  husband  or  wife,  or 
both,  is  community  property.  The  earnings  of  the  wife  are  not 
liable  for  the  debts  of  the  husband.  The  earnings  and  accumula- 
tions of  the  wife,  and  her  minor  children  living  with  her  and  in  her 
custody,  while  she  is  living  separate  from  her  husband,  are  the 
separate  property  of  the  wife. 

The  separate  property  of  the  wife  is  not  liable  for  the  debts  of 
her  hushand.  but  is  liable  for  her  own  debts,  contracted  before  or 
after  marriage.  The  separate  property  of  the  husband  is  not  liable 
for  the  debts  of  the  wife  contracted  before  marriage.  The  property 
of  the  community  is  not  liable  for  the  contracts  of  the  wife  made 
after  marriage,  unless  secured  by  a  pledge  or  mortgage  thereof 
executed  by  the  husband. 

The  husband  has  the  management  and  control  of  the  community 
property,  with  the  like  absolute  power  of  disposition  (other  than 
testamentary)  as  he  has  of  his  separate  estate.  No  estate  in 
dower  is  allotted  to  the  wife  upon  the  death  of  her  husband. 

If  the  husband  neglects  to  make  adequate  provision  for  the  sup- 
port of  his  wife,  any  other  person  may,  in  good  faith,  supply  her 
with  articles  necessary  for  her  support,  and  recover  the  reasonable 
value  thereof  from  the  husband ;  except  that  a  husband  abandoned 
by  his  wife  is  not  liable  for  her  support  until  she  offers  to  return, 
unless  she  was  justified,  by  his  misconduct,  in  abandoning  him  ; 
nor  is  he  liable  for  her  support  when  she  is  living  separate  from 
him,  by  agreement,  unless  such  support  is  stipulated  in  the  agree- 
ment. 

A  married  woman  may  become  a  sole  trader  by  the  judgment  of 
the  County  Court  of  the  county  in  which  she  has  resided  for  six 
months  next  preceding  the  application. 

A  certified  copy  of  the  decree  of  the  Court  must  be  recorded 
in  the  office  of  the  recorder  of  the  county  where  the  business  is  to 
be  carried  on. 

A  sole  trader  is  entitled  to  carry  on  the  business  specified  in  her 
own  name,  and  the  property,  revenues,  moneys  and  credits  so  by 


110  CALIFORNIA.  [Part  3. 

her  invested,  and  the  profits  thereof,  belong  exclusively  to  her, 
and  are  not  liable  for  any  debts  of  her  husband.  The  husband  of 
a  sole  trader  is  not  liable  for  any  debts  contracted  by  her  in  the 
course  of  her  sole  trader's  business,  unless  contracted  upon  his 
written  consent. 


CHAPTER  XXIX. 

MINORS. 

Minors  are  males  under  twenty-one  years  of  age,  females  under 
eighteen  years  of  age. 

A  minor  cannot  give  a  delegation  of  power,  nor,  under  the  age 
of  eighteen,  make  a  contract  relating  to  real  property,  or  any 
interest  therein,  or  relating  to  any  personal  property  not  in  his 
immediate  possession  or  control.  A  minor  may  make  any  other 
contract,  in  the  same  manner  as  an  adult,  subject  to  his  power  of 
disaffirmance.  A  minor  cannot  disaffirm  a  contract,  otherwise  valid, 
to  pay  the  reasonable  value  of  things  necessary  for  his  support,  or 
that  of  his  family,  entered  into  by  him  when  not  under  the  care  of 
a  parent  or  guardian  able  to  provide  for  him  or  them.  Nor  can  a 
minor  disaffirm  an  obligation,  otherwise  valid,  entered  into  by  him 
under  the  express  authority  or  direction  of  a  statute.  In  all  other 
cases,  the  contract  of  a  minor,  if  made  whilst  he  is  under  the  age 
of  eighteen,  may  be  disaffirmed  by  the  minor  himself,  eijther  before 
his  majority,  or  within  a  reasonable  time  afterwards ;  or  in  case  of 
his  death  within  that  period,  by  his  heirs  or  personal  representa- 
tives ;  and  if  the  contract  be  made  by  the  minor  whilst  he  is  over 
the  age  of  eighteen,  it  may  be  disaffirmed  in  like  manner,  upon 
restoring  the  consideration  to  the  party  from  whom  it  was  received, 
or  paying  its  equivalent. 

If  a  parent  neglect  to  provide  articles  necessary  for  his  child, 


Chap.  30.]  CALIFORNIA.  Ill 

who  is  under  his  charge,  according  to  his  circumstances,  a  third 
person  may  in  good  faith  supply  such  necessaries,  and  recover  the 
reasonable  value  thereof  from  the  parent. 

A  minor  may  enforce  his  rights  by  civil  action,  or  other  legal 
proceedings,  in  the  same  manner  as  a  person  of  full  age,  except 
that  a  guardian  must  conduct  the  same. 


CHAPTER  XXX. 

STOPPAGE  IN  TRANSIT. 

A  seller  or  consignor  of  property,  whose  claim  for  its  price  or 
proceeds  has  not  been  extinguished,  may,  upon  the  insolvency  of 
the  buyer  or  consignee  becoming  known  to  him  after  parting  with 
the  property,  stop  it  while  on  -its  transit  to  the  buyer  or  consignee, 
and  resume  possession  thereof.  A  person  is  insolvent,  within  the 
meaning  of  the  above  term,  when  he  ceases  to  pay  his  debts  in  the 
manner  usual  with  persons  of  his  business,  or  when  he  declares  his 
inability  or  unwillingness  to  do  so.  The  transit  of  property  is  at  an 
end  when  it  comes  into  the  possession  of  the  consignee,  or  into  that 
of  his  agent,  unless  such  agent  is  employed  merely  to  forward  the 
property  to  the  consignee.  Stoppage  in  transit  can  be  eifected  only 
by  notice  to  the  carrier  or  depositary  of  the  property,  or  by  taking 
actual  possession  thereof. 

Stoppage  in  transit  does  not,  of  itself,  rescind  a  sale,  but  is  a 
means  of  enforcing  the  lien  of  the  seller. 

A  bona  fide  transfer  of  a  bill  of  lading  defeats  the  right  of 
stoppage  in  transit,  if  such  transfer  is  made  before  the  right  of 
stoppage  has  been  actually  exercised  by  the  consignor. 


CALIFORNIA.  [Part  3. 


CHAPTER   XXXI. 

BILLS   OF  LADING. 

A  bill  of  lading  is  an  instrument  in  writing,  signed  by  a  carrier  or 
his  agent,  describing  the  freight  so  as  to  identify  it,  stating  the 
name  of  the  consignor,  the  terms  of  the  contract  for  carriage,  and 
agreeing  or  directing  that  the  freight  be  delivered  to  the  order  or 
assigns  of  a  specified  person,  at  a  specified  place. 

The  title  to  the  freight  which  the  first  holder  of  a  bill  of  lading 
had  when  he  received  it  passes  to  every  subsequent  indorsee  there- 
of, in  good  faith  and  for  value,  in  the  ordinary  course  of  business, 
with  like  effect,  and  in  like  manner,  as  in  the  case  of  a  bill  of  ex- 
change. If  a  bill  of  lading  is  made  payable  to  "  bearer,"  it  is 
transferable  by  delivery. 


CHAPTER  XXXII. 

INTEREST. 

Unless  there  is  an  express  contract  in  writing  fixing  a  different 
rate,  interest  is  payable  on  all  moneys  at  the  rate  of  ten  per  cent, 
per  annum,  after  they  become  due,  on  any  instrument  of  writing 
except  a  judgment,  and  on  moneys  lent  or  due  on  any  settlement 
of  accounts  from  the  day  on  which  the  balance  is  ascertained,  and 
on  moneys  received  to  the  use  of  another,  and  detained  from  him. 
In  the  computation  of  interest  for  a  period  less  than  a  year,  three 
hundred  and  sixty  days  are  deemed  to  constitute  a  year. 

Interest  is  payable  on  judgments  recovered  in  the  Courts  of  this 


Chap.  33.]  CALIFORNIA.  113 

State  at  the  rate  of  seven  per  cent,  per  annum,  and  no  greater 
"rate  ;  but  such  interest  must  not  be  compounded  in  any  manner  or 
form. 

Parties  may  agree  in  writing  for  the  payment  of  any  rate  of  in- 
terest, and  it  shall  be  allowed,  according  to  the  terms  of  the  agree- 
ment, until  the  entry  of  judgment ;  and  they  may,  in  any  contract 
in  writing  whereby  any  debt  is  secured  to  be  paid,  agree  that  if 
the  interest  on  such  debt  is  not  punctually  paid,  it  shall  become  a 
part  of  the  principal,  and  thereafter  bear  the  same  rate  as  the 
principal  debt. 

Open  accounts  do  not  bear  interest. 


CHAPTER  XXXIII. 

COMMON   CARRIERS. 

Unless  the  consignor  accompanies  the  freight,  and  retains  exclu- 
sive control  thereof,  an  inland  common  carrier  of  property  is  liable, 
from  the  time  that  he  accepts  until  he  relieves  himself  from  liability, 
for  the  loss  or  injury  thereof,  except : 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous  ac- 
tion of  the  property  itself. 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of  this 
State. 

3.  The  act  of  the  law  ;  or 

4.  Any  irresistible  superhuman  cause. 

He  is  liable,  even  in  the  cases  above  excepted,  if  his  ordi- 
nary negligence  exposes  the  property  to  the  cause  of  the  loss.  A 
common  carrier  is  liable  for  delay  only  when  it  is  caused  by  his- 
want  of  ordinary  care  and  diligence. 

A  marine  carrier  is  liable  in  like  manner  as  an  inland  carrier,, 
except  for  loss  or  injury  caused  by  the  perils  of  the  sea  or  firo. 
8 


J14  CALIFORNIA.  [Part  3. 

CHAPTER  XXXIV. 

MORTGAGES  OF  PERSONAL  PROPERTY. 

Mortgages  may  be  made  upon  : 

1.  Locomotives,  engines,  and  the  other  rolling  stock  of  a  rail- 
road. 

2.  Steamboat  machinery,  and   machinery  used  by  machinists, 
foundrymen,  and  mechanics. 

3.  Steam  engines  and  boilers. 

4.  Mining  machinery. 

5.  Printing  presses  and  material. 

6.  Professional  libraries. 

7.  Instruments  of  a  surgeon,  physician,  or  dentist. 

8.  Upholstery  and  furniture  used  in  hotels  or  boarding  houses, 
when  mortgaged  to  secure  the  purchase  money  of  the  articles  mort- 
gaged. 

9.  Growing  crops. 

10.  Vessels  of  more  than  five  tons'  burden. 

A  mortgage  of  personal  property  is  void  as  against  creditors  of 
the  mortgagor,  and  subsequent  purchasers  and  incumbrancers  of 
the  property  in  good  faith  and  for  value,  unless — 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties  thereto 
that  it  is  made  in  good  faith,  and  without  any  design  to  hinder,  de- 
lay, or  defraud  creditors. 

2.  It  is  acknowledged  or  proved,  certified  and  recorded. 

A  mortgage  of  personal  property  must  be  recorded  in  the  office 
of  the  county  recorder  of  the  county  in  which  the  mortgagor  re- 
sides, and  also  of  the  county  in  which  the  property  mortgaged  is 
situated,  or  to  which  it  may  be  removed. 

A  certified  copy  of  a  mortgage  of  personal  property  once  re- 
corded may  be  recorded  in  any  other  county,  and  when  so 
recorded,  the  record  thereof  has  the  same  force  and  effect  as 
though  it  was  of  the  original  mortgage. 

When  property  mortgaged  is  thereafter  by  the  mortgagor  re- 


Chap.  34.]  CALIFORNIA.  115 

moved  from  the  county  in  which  it  is  situated,  it  is,  except  as 
between  the  parties  to  the  mortgage,  exempt  from  the  operation 
thereof,  unless  either  : 

1.  The  mortgagee,  within  thirty  days  after  such  removal,  causes 
the  mortgage  to  be  recorded  in  the  county  to  which  the  properly 
has  been  removed  ;  or, 

2.  The  mortgagee,  within  thirty  days  after  such  removal,  takes 
possession  of  the  property,  as  prescribed  in  the  next  paragraph. 

If  the  mortgagor  voluntarily  removes  or  permits  the  removal  of 
the  mortgaged  property  from  the  county  in  which  it  was  situated 
at  the  time  it  was  mortgaged,  the  mortgagee  may  take  possession 
and  dispose  of  the  property  as  a  pledge  for  the  payment  of  the 
debt,  though  the  debt  is  not  due. 

Personal  property  mortgaged  may  be  taken  under  attachment  or 
execution  issued  at  the  suit  of  a  creditor.  Before  the  property  is/ 
so  taken,  the  officer  must  pay  or  tender  to  the  mortgagee  the 
amount  of  the  mortgage  debt  and  interest,  or  must  deposit  the 
amount  thereof  with  the  county  clerk  or  treasurer,  payable  to  the 
order  of  the  mortgagee. 

When  the  property  thus  taken  is  sold  under  process,  the  officer 
must  apply  the  proceeds  of  sale  as  follows : 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee,  with  in- 
terest from  the  date  of  such  payment ;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of  sales 
under  execution  are  applied  in  other  cases. 

A  mortgagee  of  personal  property,  when  the  debt  to  secure 
which  the  mortgage  was  executed  becomes  due,  may  foreclose  the 
mortgagor's  right  of  redemption  by  a  sale  of  the  property  made  in 
the  manner  prescribed  in  the  chapter  on  "pledge,"  or  may  proceed 
by  a  judicial  sale  under  the  direction  of  a  competent  Court. 


116  CALIFORNIA.  [Part  3. 


CHAPTER  XXXV. 

PLEDGE. 

A  pledge  is  a  deposit  of  personal  property  by  way  of  security 
for  the  performance  of  another  act. 

Where  a  debtor  has  obtained  credit,  or  an  extension  of  time,  by 
a  fraudulent  misrepresentation  of  the  value  of  property  pledged  by 
or  for  him,  the  creditor  may  demand  a  further  pledge  to  correspond 
with  the  value  represented  ;  and  in  default  thereof  may  recover 
his  debt  immediately,  though  it  be  not  actually  due. 

When  performance  of  the  act  for  which  a  pledge  is  given  is 
due,  in  whole  or  in  part,  the  pledgee  may  collect  what  is  due  to 
him  by  a  sale  of  the  property  pledged. 

Before  property  pledged  can  be  sold,  and  after  performance  of 
the  act  for  which  it  is  security  is  due,  the  pledgee  must  demand 
performance  thereof  from  the  debtor,  if  the  debtor  can  be  found. 

A  pledgee  must  give  actual  notice  to  the  pledgor  of  the  time 
and  place  at  which  the  property  pledged  will  be  sold,  at  such  a 
reasonable  time  before  the  sale  as  will  enable  the  pledgor  to  at- 
tend. 

The  sale  by  a  pledgee  of  property  pledged  must  be  made  by 
public  auction,  in  the  manner  and  upon  the  notice  to  the  public 
usual  at  the  place  of  sale,  in  respect  to  auction  sales  of  similar 
property  ;  and  must  be  for  the  highest  obtainable  price. 

A  pledgee  cannot  sell  any  evidence  of  debt  pledged  to  him, 
except  the  obligations  of  governments,  States,  or  corporations  ;  but 
he  may  collect  the  same  when  due. 

The  pledgor  may  require  the  property  to  be  sold  when  it 'will 
bring  a  sufficient  amount  to  satisfy  the  claim  of  the  pledgee. 

A  pledgee  or  pledge  holder  cannot  purchase  the  property  pledged, 
except  by  direct  dealings  with  the  pledgor. 

Instead  of  selling  property  pledged,  as  hereinbefore  provided,  a 
pledgee  may  foreclose  the  right  of  redemption  by  a  judicial  sale, 
under  the  directions  of  a  competent  Court ;  and  in  that  case  may 
be  authorized  by  the  Court  to  purchase  at  the  sale. 


Chap.  36.]  CALIFORNIA.  117 

CHAPTER  XXXVI. 

GUARANTY  AND   SURETYSHIP. 

A  guaranty  is  a  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person. 

Where  a  guaranty  is  entered  into  at  the  same  time  with  the  orig- 
inal obligation,  or  with  the  acceptance  of  the  latter  by  the  guarantee, 
and  forms  with  that  obligation  a  part  of  the  consideration  to  him, 
no  other  consideration  need  exist.  In  all  other  cases  there  must 
be  a  consideration  distinct  from  that  of  the  original  obligation. 

Except  as  hereinafter  described,  a  guaranty  must  be  in  writing, 
and  signed  by  the  guarantor ;  but  the  writing  need  not  express  a 
consideration. 

A  promise  to  answer  for  the  obligation  of  another,  in  any  of  the 
following  cases,  is  deemed  an  original  obligation  of  the  promisor, 
and  need  not  be  in  writing : 

1.  Where  the  promise  is  made  by  one  who  has  received  property 
of  another  upon  an  undertaking  to  apply  it  pursuant  to  such  prom- 
ise ;  or  by  one  who  has  received  a  discharge  from  an  obligation  in 
whole  or  in  part,  in  consideration  of  such  promise. 

2.  Where  the  creditor  parts  with  valua,  or  enters  into  an  obli- 
gation in  consideration  of  the  obligation  in  respect  to  which  the 
promise  is  made,  in  terms  or  under  circumstances  such  as  to  ren- 
der the  party  making  the  promise  the  principal  debtor,  and  the 
person  in  whose  behalf  it  is  made  his  surety. 

3.  WThere  the  promise,  being  for  an  antecedent  obligation  of 
another,  is  made  upon  the  consideration  that  the  party  receiving  it 
cancels  the  antecedent  obligation,  accepting  the  new  promise  as  a 
substitute  therefor ;  or  upon  the  consideration  that  the  party  receiv- 
ing it  releases  the  property  from  a  levy,  or  his  person  from  imprison- 
ment, under  an  execution  on  a  judgment  obtained  upon  the  antece- 
dent obligation ;  or  upon  a  consideration  beneficial  to  the  promisor, 
whether  moving  from  either  party  to  the  antecedent  obligation,  or 
from  another  person. 


118  CALIFORNIA.  [Part  3. 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell  merchan- 
dise and  guarantee  the  sale. 

5.  Where  the  holder  of  an  instrument  for  the  payment  of  money, 
upon  which  a  third  person  is  or  may  become  liable  to  him,  transfers 
it  in  payment  of  a  precedent  debt  of  his  own,  or  for  a  new  consid- 
eration, and  in  connection  with  such  transfer  enters  into  a  promise 
respecting  such  instrument. 

A  guarantor  is  exonerated,  exept  so  far  as  he  may  be  indemnified 
by  the  principal,  if  by  any  act  of  the  creditor  without  the  consent 
of  the  guarantor  the  original  obligation  of  the  principal  is  altered 
in  any  respect,  or  the  remedies  or  rights  of  the  creditor  against 
the  principal  in  respect  thereto  are  in  any  way  impaired  or  sus- 
pended. 

A  surety  is  one  who,  at  the  request  of  another,  and  for  the 
purpose  of  securing  to  him  a  benefit,  becomes  responsible  for  the 
performance,  by  the  latter,  of  some  act  in  favor  of  a  third  person, 
or  hypothecates  property  as  security  therefor. 

A  surety  is  exonerated  : 

1.  In  like  manner  with  a  guarantor. 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of  the 
creditor  which  would  naturally  prove  injurious  to  the  remedies  of 
the  surety,  or  inconsistent  with  his  rights,  or  which  lessens  his 
security  ;  or, 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission  of  the 
creditor  to  do  anything,  when  required  by  the  surety,  which  it  is 
his  duty  to  do. 

A  surety  has  all  the  rights  of  a  guarantor. 

A  surety  may  require  his  creditor  to  proceed  against  the  princi- 
pal, or  to  pursue  any  other  remedy  in  his  power  which  the  surety 
cannot  himself  pursue,  and  which  would  lighten  his  burden  ;  and 
if  in  such  case  the  creditor  neglects  to  do  so,  the  surely  is  exon- 
erated to  the  extent  to  which  he  is  thereby  prejudiced. 

A  surety  may  compel  his  principal  to  perform  the  obligation 
when  due. 

A  surety,  upon  satisfying  the  obligation  of  the  principal,  is 
entitled  to  enforce  every  remedy  which  the  creditor  then  has 
against  the  principal,  to  the  extent  of  reimbursing  what  he  has 


Chap.  37.]  CALIFORNIA.  119 

expended,  and  also  to  require  all  his  co-sureties  to  contribute 
thereto,  without  regard  to  the  order  of  time  in  which  they  became 
such. 

Whenever  property  of  a  surety  is  hypothecated  with  property  of 
the  principal,  the  surety  is  entitled  to  have  the  property  of  the 
principal  first  applied  to  the  discharge  of  the  obligation. 

LETTER  OF  CREDIT. 

A  letter  of  credit  is  a  written  instrument,  addressed  by  one 
person  to  another,  requesting  the  latter  to  give  credit  to  the 
person  in  whose  favor  it  is  drawn. 

The  writer  of  a  letter  of  credit  is,  upon  the  default  of  the 
debtor,  liable  to  those  who  gave  credit  in  compliance  with  its  terms. 


CHAPTER  XXXYII. 

SALE. 

No  sale  of  personal  property,  or  agreement  to  buy  or  sell  it,  for 
a  price  of  two  hundred  dollars  or  more,  is  valid,  unless : 

1.  The  agreement,  or  some  *note  or  memorandum  thereof,  be  in 
writing,  and  subscribed  by  the  party  to  be  charged,  or  by  his 
agent ;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  thing  sold,  or 
when  it  consists  of  a  thing  in  action,  part  of  the  evidences  thereof, 
or  some  of  them  ;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the  price. 

The  foregoing  provisions  do  not  affect  an  agreement  to  manufac- 
ture a  thing  from  materials  furnished  by  the  manufacturer  or  by 
another  person. 


120  CALIFORNIA.  [Part  3. 

No  agreement  for  the  sale  of  real  property,  or  of  an  interest 
therein,  is  valid,  unless  the  same,  or  some  note  or  memorandum 
thereof,  be  in  writing,  and  subscribed  by  the  party  to  be  charged, 
or  his  agent  thereunto  authorized  in  writing. 

If  a  buyer  of  personal  property  does  not  pay  for  it  according  to 
contract,  and  it  remains  in  the  possession  of  the  seller  after  pay- 
ment is  due,  the  seller  may  rescind  the  sale,  or  enforce  his  lien  for 
the  price. 

In  order  to  make  a  sale  of  personal  property  effectual  as  against 
creditors,  there  must  be  an  immediate,  actual,  and  continued  change 
of  possession. 


CHAPTER  XXXYIII. 

CONTRACTS. 

A  contract  is  an  agreement  to  do  or  not  to  do  a  certain  thing. 
It  is  essential  to  the  existence  of  a  contract  that  there  should  be  : 

1.  Parties  capable  of  contracting. 

2.  Their  consent. 

3.  A  lawful  object. 

4.  A  sufficient  cause  of  consideration. 

A  written  instrument  is  presumptive  evidence  of  consideration. 

Contracts  are  either  express  or  implied. 

An  express  contract  is  one,  the  terms  of  which  are  stated  in 
words. 

An  implied  contract  is  one,  the  existence  and  terms  of  which  are 
manifested  by  conduct. 

The  following  contracts  are  invalid,  unless  the  same,  or  some 
note  or  memorandum  thereof,  be  in  writing,  and  subscribed  by  the 
party  to  be  charged,  or  by  his  agent : 


Chap.  39.]  CALIFORNIA.  121 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed  with- 
in a  year  from  the  making  thereof. 

2.  A  special  promise  to  answer  for  the  debts,  default  or  miscarri- 
age of  another,  except  in  the  cases  mentioned  in  Chapter  XXXVI. 

3.  An  agreement  made  upon  consideration  of  marriage,  other 
than  a  mutual  promise  to  marry. 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things  in 
action,  at  a  price  not  less  than  two  hundred  dollars,  unless  the  buyer 
accept  or  receive  part  of  such  goods  and  chattels,  or  the  evidences, 
or  some  of  them,  of  such  things  in  action,  or  pay  at  the  time  some 
part  of  the  purchase  money ;  but  when  a  sale  is  made  by  auction, 
an  entry  by  the  auctioneer  in  his  sale  book,  at  the  time  of  the  sale, 
of  the  kind  of  property  sold,  the  terms  of  sale,  the  price,  and  the 
names  of  the  purchaser  and  person  on  whose  account  the  sale  is 
made,  is  a  sufficient  memorandum. 

5.  An   agreement  for  the  leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  real  property,  or  of  an  interest  therein  ; 
and  such  agreement,  if  made  by  an  agent  of  the  party  sought  to 
be   charged,  is  invalid,  unless  the   authority  of  the  agent   be  in 
writing,  subscribed  by  the  party  sought  to  be  charged. 

All  contracts  may  be  oral,  except  such  as  are  specially  required 
by  statute  to  be  in  writing. 


CHAPTER  XXXIX. 

NEGOTIABLE  INSTRUMENTS. 

A  bill  of  exchange  is  an  instrument  negotiable  in  form,  by  which 
one,  who  is  called  the  drawer,  requests  another,  called  the  drawee, 
lo  pay  a  specified  sum  of  money. 


122  CALIFORNIA.  [Part  3. 

A  bill  of  exchange  is  payable  : 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable  ;  or, 

2.  If  it  specify  no  place  of  payment,  then  at  the  place  to  which 
it  is  addressed  ;  or, 

3.  If  it  is  not  addressed  to  any  place,  then  at  the  place  of  resi- 
dence or  business  of  the  drawee,  or  wherever  he  may  be  found.    If 
the  drawee  has  no  place  of  business,  or  if  his  place  of  business  or 
residence  cannot,  with  reasonable  diligence,  be  ascertained,  pre- 
sentment for  payment  is  excused,  and  the  bill  may  be  protested  for 
non-payment. 

Presentment  of  a  bill  of  exchange  for  acceptance  must  be  made 
in  the  following  manner,  as  nearly  as  by  reasonable  diligence  it  is 
practicable  : 

1.  The   bill  must  be  presented  by  the  holder  or  his  agent. 

2.  It  must  be  presented  on  a  business  day,  and  within  reasona- 
ble hours. 

3.  It  must  be  presented  to   the   drawee,    or  if  he  be   absent 
from  his  place  of  residence  or  business,   to  some  person  having 
charge  thereof,  or  employed  therein ;  and, 

4.  The    drawee,  on  such   presentment,  may  postpone    his  ac- 
ceptance or  refusal  until  the  next  day.     If  the  drawee  have  no 
place  of  business,  or  if  his  place  of  business  or  residence  cannot, 
with  reasonable  diligence,  be  ascertained,  .presentment  for  accept- 
ance is  excused,  and  the  bill  may  be  protested  for  non-acceptance. 

When  a  bill  of  exchange  is  payable  at  a  specified  time  after 
sight,  the  drawer  and  endorsers  are  exonerated  if  it  is  not  pre- 
sented for  acceptance  within  ten  days  after  the  time  which  would 
suffice,  with  ordinary  diligence,  to  forward  it  for  acceptance,  unless 
presentment  is  excused. 

An  acceptance  of  a  bill  must  be  made  in  writing,  and  may  be 
made  by  the  acceptor  writing  his  name  across  the  face  of  the  bill, 
with  or  without  other  words. 

An  unconditional  promise,  in  writing,  to  accept  a  bill  of  ex- 
change, is  a  sufficient  acceptance  thereof,  in  favor  of  every  person 
who  upon  the  faith  thereof  has  taken  the  bill  for  value  or  other 
good  consideration. 

On  the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and  in 


Chap.  89.]  CALIFORNIA.  123 

case  of  a  foreign  bill,  after  it  has  been  duly  protested,  it  may  be 
accepted  or  paid  by  any  person,  for  the  honor  of  any  party 
thereto. 

If  a  bill  of  exchange,  payable  at  sight  or  on  demand,  without  in- 
terest, is  not  duly  presented  for  payment  within  ten  days  after  the 
time  in  which  it  could,  with  reasonable  diligence,  be  transmitted  to 
the  proper  place  for  presentment,  the  drawer  and  endorsers  are  ex- 
onerated unless  such  presentment  is  excused. 

The  presentment  of  a  bill  of  exchange  for  acceptance  is  excused 
if  the  drawee  has  not  capacity  to  accept  it. 

Delay  in  the  presentment  of  a  bill  of  exchange  for  acceptance 
is  excused,  when  caused  by  circumstances  over  which  the  owner 
has  no  control. 

Presentment  of  a  bill  of  exchange  for  acceptance  or  payment, 
and  notice  of  its  dishonor,  are  excused  as  to  the  drawer,  if  he  for- 
bids the  drawee  to  accept,  or  the  acceptor  to  pay  the  bill ;  or  if.  at 
the  time  of  drawing,  he  had  no  reason  to  believe  that  the  drawee 
would  accept  or  pay  the  same. 

An  inland  bill  of  exchange  is  one  drawn  and  payable  within  this 
State.  All  others  are  foreign. 

Notice  of  the  dishonor  of  a  foreign  bill  of  exchange  can  be 
given  only  by  notice  of  its  protest,  and  the  protest  must  be  made 
by  a  notary  public,  if  with  reasonable  diligence  one  can  be  ob- 
tained ;  and  if  not,  then  by  any  reputable  person,  in  the  presence 
of  two  witnesses.  Protest  for  non-acceptance  must  be  made  in  the 
city  or  town  in  which  the  bill  is  presented  for  acceptance,  and  a 
protest  for  non-payment  in  the  city  or  town  in  which  it  is  presented 
for  payment. 

One  who  pays  a  foreign  bill  for  honor  must  declare,  before  pay- 
ment, in  the  presence  of  a  person  authorized  to  make  protest,  for 
whose  honor  he  pays  the  same,  in  order  to  entitle  him  to  reim- 
bursement. 

Damages  on  foreign  bills  of  exchange  are  allowed  as  hereinafter 
prescribed,  as  a  full  compensation  for  interest  accrued  before  notice 
of  dishonor,  re-exchange,  expenses,  and  all  other  damages,  in  favor 
of  holders  for  value  only,  upon  bills  of  exchange  drawn  or  nego- 
tiated within  this  State,  and  protested  for  non-acceptance  or  non- 
payment. 


124  •    CALIFORNIA.  [Part  3. 

Damages  are  allowed  as  follows  : 

1.  If  drawn  upon  any  person  in  this  State,  two  dollars  upon 
each  one  hundred  dollars  of  the  principal  sum  specified  in  the  bill. 

2.  If  drawn  upon  any  person  out  of  this  State,  but  in  any  other 
of  the  States  west  of  the  Rocky  Mountains,  five  dollars  upon  each 
hundred  dollars  of  the  principal  sum  specified  in  the  bill. 

3.  If  drawn  upon  any  person  in  any  of  the  United  States,  east 
of  the  Rocky  Mountains,  ten  dollars  upon  each  hundred  dollars  of 
the  principal  sum  specified  in  the  bill. 

4.  If  drawn  upon  any  person  in  any  place  in  a  foreign  country, 
fifteen  dollars  upon  each  hundred  dollars  of  the  -principal  sum 
specified  in  the  bill. 

From  the  time  of  notice  of  dishonor  and  demand  of  payment, 
lawful  interest  must  be  allowed  upon  the  aggregate  amount  of  the 
principal  sum  specified  in  the  bill,  and  the  damages  above  mentioned. 

A  promissory  note  is  an  instrument  negotiable  in  form,  whereby 
the  signer  promises  to  pay  a  specified  sum  of  money. 

If  a  promissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months  from 
its  date,  the  indorsers  thereof  are  exonerated,  unless  such  present- 
ment is  excused. 

Days  of  grace  are  not  allowed  on  bills  of  exchange  and  promis- 
sory notes. 

A  check  is  a  bill  of  exchange  drawn  upon  a  bank  or  banker,  or 
a  person  described  as  such  upon  the  face  thereof,"  and  payable  on 
demand  without  interest. 

A  check  is  subject  to  all  the  provisions  herein  mentioned  con- 
cerning bills  of  exchange,  except  that  : 

1.  The  drawer  and  indorsers  are  exonerated  by  delay  in  pres- 
entation only  to  the  extent  of  the  injury  they  suffer  thereby. 

2.  An  indorsee,  after  its  apparent  maturity,  but  without  actual 
notice  of  its  dishonor,  acquires  a  title  equal  to  that  of  an  indorsee 
before  such  period. 

A  negotiable  instrument  must  be  made  payable  in  money  only, 
and  without  any  condition  not  certain  of  fulfillment. 

A  negotiable  instrument  may  be  with  or  without  date,  and  with 
or  without  designation  of  the  time  or  place  of  payment. 


Chap.  39.]  CALIFORNIA.  125 

A  negotiable  instrument  may  contain  a  pledge  of  collateral  se- 
curity, with  authority  to  dispose  thereof. 

A  negotiable  instrument  which  does  not  specify  a  place  of  pay- 
ment is  payable  at  the  residence  or  place  of  business  of  the  maker, 
or  wherever  he  may  be  found. 

A  negotiable  instrument,  made  payable  to  the  order  of  the 
maker,  or  of  a  fictitious  person,  if  issued  by  the  maker  for  a  valid 
consideration,  without  indorsement,  has  the  same  effect  against  him 
and  all  other  persons  having  notice  of  the  facts  as  if  payable  to  the 
bearer. 

An  indorsement  of  a  negotiable  instrument  may  be  general  or 
special. 

A  general  indorsement  is  one  by  which  no  indorsee  is  named. 
A  special  indorsement  specifies  the  indorsee. 

A  negotiable  instrument  bearing  a  general  indorsement  cannot 
be  afterwards  specially  indorsed  ;  but  any  lawful  holder  may  turn 
a  general  indorsement  into  a  special  one,  by  writing  above  it  a 
direction  for  payment  to  a  particular  person. 

A  special  indorsement  may,  by  express  words  for  that  purpose, 
but  not  otherwise,  be -so  made  as  to  render  the  instrument  not 
negotiable. 

An  indorser  may  qualify  his  indorsement  with  the  words,  "  with- 
out recourse,"  or  equivalent  words;  and  upon  such  indorsement  he 
is  responsible  only  to  the  same  extent  as  in  the  case  of  a  transfer 
without  indorsement. 

An  indorsee  in  due  course  is  one  who,  in  good  faith,  m  the 
ordinary  course  of  business,  and  for  value,  before  its  apparent 
maturity  or  presumptive  dishonor,  and  without  knowledge  of  its 
actual  dishonor,  acquires  a  negotiable  instrument  duly  indorsed  to 
him,  or  indorsed  generally,  or  payable  to  the  bearer. 

An  indorsee  of  a  negotiable  instrument,  in  due  course,  acquires 
an  absolute  title  thereto,  so  that  it  is  valid  in  his  hands,  notwith- 
standing any  provision  of  law  making  it  generally  void  or  voidable, 
and  notwithstanding  any  defect  in  the  title  of  the  person  from  whom 
he  acquired  it. 

The  want  of  consideration  for  the  undertaking  of  a  maker, 
acceptor,  or  indorser  of  a  negotiable  instrument  does  not  exonerate 


CALIFORNIA.  [Part  3. 

him  from  liability  thereon  to  an  indorsee  in  good  faith  for  a 
consideration. 

It  is  not  necessary  to  make  a  demand  of  payment  upon  the 
principal  debtor  in  a  negotiable  instrument  in  order  to  charge  him ; 
but  if  the  instrument  is,  by  its  terms,  payable  at  a  specified  place, 
and  he  is  able  and  willing  to  pay  it  there  at  maturity,  such  ability 
and  willingness  are  equivalent  to  an  offer  of  payment  on  his  part. 

Presentment  of  a  negotiable  instrument  for  payment,  when 
necessary,  must  be  made  as  follows,  as  nearly  as  by  reasonable 
diligence  it  is  practicable : 

1.  The  instrument  must  be  presented  by  the  holder. 

2.  The  instrument  must  be  presented  to  the  principal  debtor,  if 
he  can  be  found  at  the  place  where  presentment  should  be  made  ; 
and  if  not,  then  it  must  be  presented  to  some  other  person  having 
charge  thereof,  or  employed  therein,  if  one  can  be  found  there. 

3.  An  instrument  which  specifies  a  place  for  its  payment  must 
be  presented  there  ;  and  if  the  place  specified  includes  more  than 
one  house,  then  at  the  place  of  residence  or  business  of  the  prin- 
cipal debtor,  if  it  can  be  found  therein. 

4.  An  instrument  which  does  not  specify  a  place  for  its  pay- 
ment must  be  presented  at  the  place  of  residence  or  business  of 
the  principal  debtor,  or  wherever  he  may  be  found,  at  the  option  of 
the  presenter ;  and 

5.  The  instrument   must   be    presented   upon  the    day   of  its 
maturity,  or  if  it  be  payable  on  demand,  it  may  be  presented  on 
any  day.     It  must  be  presented  within  reasonable  hours  ;  and  if  it 
be  payable  at  a  banking  house,  within  the  usual  banking  hours  of 
the  vicinity  ;  but  by  the  consent  of  the  person  to  whom  it  should 
be  presented,  it  may  be  presented  at  any  hour  of  the  day. 

6.  If  the  principal  debtor  have  no  place  of  business,  or  if  his 
place  of  business  or  residence  cannot,  with  reasonable  diligence,  be 
ascertained,  presentment  for  payment  is  excused. 

The  apparent  maturity  of  a  negotiable  instrument,  payable  at  a 
particular  time,  is  the  day  on  which,  by  its  terms,  it  becomes  due, 
or  when  that  is  a  holiday,  the  next  business  day. 

A  bill  of  exchange,  payable  at  a  certain  time  after  sight,  which 
is  not  accepted  within  ten  days  after  its  date,  in  addition  to  the 


Chap.  39.]  CALIFORNIA.  127 

time  which  would  suffice,  with  ordinary  diligence,  to  forward  it  for 
acceptance,  is  presumed  to  have  been  dishonored. 

The  apparent  maturity  of  a  bill  of  exchange,  payable  at  sight  or 
on  demand,  is  : 

1.  If  it  bears  interest,  one  year  after  its  date  ;  or, 

2.  If  it  does  not  bear  interest,  ten  days  after  its  date,  in  addi- 
tion to  the  time  which  would  suffice,  with  ordinary  diligence,  to  for- 
ward it  for  acceptance. 

The  apparent  maturity  of  a  promissory  note,  payable  at  sight  or 
on  demand,  is : 

1.  If  it  bears  interest,  one  year  after  its  date  ;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 
When  a  promissory  note  is  payable  at  a  certain  time  after  sight 

or  demand,  such  time  is  to  be  added  to  the  period  above  mentioned. 

A  negotiable  instrument  is  dishonored  when  it  is  either  not  paid 
or  not  accepted,  according  to  its  tenor,  on  presentation  for  the  pur- 
pose, or  without  presentation  when  that  is  excused. 

Notice  of  the  dishonor  of  a  negotiable  instrument  may  be  given : 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  compelled  to 
pay  it  to  the  holder,  and  who  would,  upon  taking  it  up,  have  a 
right  to  reimbursement  from  the  party  to  whom  the  notice  is  given. 

A  notice  of  dishonor  may  be  given  in  any  form  which  describes 
the  instrument  with  reasonable  certainty,  and  substantially  informs 
the  party  receiving  it  that  the  instrument  has  been  dishonored. 

A  notice  of  dishonor  may  be  given  : 

1.  By  delivering  it  to  the  party  to  be  charged,  personally,  at 
any  place  ;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the  place  of 
residence  or  business  of  such  party,  apparently  acting  for  him  ;  or, 

3.  By  properly  folding  the  notice,  directing  it  to  the  party  to  be 
charged,  at  his  place  of  residence,  according  to  the  best  informa- 
tion that  the  person  giving  the  notice  can  obtain,  depositing  it  in 
the  post  office  most  conveniently  accessible  from  the  place  where 
the  presentment  was  made,  and  paying  the  postage  thereon. 

In  case  of  the  death  of  a  party  to  whom  notice  of  dishonor  should 
otherwise  be  given,  the  notice  must  be  given  to  one  of  his  personal 


128  CALIFORNIA.  [Part  3. 

representatives  ;  or  if  there  are  none,  then  to  any  member  of  his 
family  who  resided  with  him  at  his  death  ;  or  if  there  is  none,  then 
it  must  be  mailed  to  his  last  place  of  residence. 

A  notice  of  dishonor  given  otherwise  than  by  mail  must  be  given 
on  the  day  of  dishonor,  or  on  the  next  business  day.  When  given* 
by  mail,  it  must  be  deposited  in  the  post  office  in  time  for  the  first 
mail  which  closes  after  noon  of  the  first  business  day  succeeding 
the  dishonor,  and  which  leaves  the  place  where  the  instrument  was 
dishonored  for  the  place  to  which  the  notice  should  be  sent. 

Every  party  to  a  negotiable  instrument,  receiving  notice  of  its 
dishonor,  has  the  like  time  thereafter  to  give  similar  notice  to  prior 
parties  as  the  original  holder  had  after  its  dishonor.  But  this 
additional  time  is  available  only  to  the  particular  party  entitled 
thereto. 

A  notice  of  the  dishonor  of  a  negotiable  instrument,  if  valid  in 
favor  of  the  party  giving  it,  inures  to  the  benefit  of  all  other  par- 
ties thereto  whose  right  to  give  the  like  notice  has  not  then  been 
lost. 

Notice  of  dishonor  is  excused  : 

1.  When  the  party  by  whom  it  should  be  given  cannot,  with 
reasonable  diligence,  ascertain  either  the   place   of  residence   or 
business  of  the  party  to  be  charged  ;  or, 

2.  When  there  is  no  post  office  communication  between  the  town 
of  the  party  by  whom  the  notice  should  be  given,  and  the  town  in 
which  the  place  of  residence  or  business  of  the  party  to  be  charged 
is  situated  ;  or, 

3.  When  the  party  to  be  charged  is  the  same  person  who  dis- 
honors the  instrument ;  or, 

4.  When  the  notice  is  waived  by  the  party  entitled  thereto. 
Presentment  and  notice  are  excused  as  to  any  party  who  informs 

the  holder,  within  ten  days  before  maturity,  that  the  instrument 
will  be  dishonored. 

If  before  or  after  the  maturity  of  an  instrument  an  indorser  has 
received  full  security  for  the  amount  thereof,  or  the  maker  has 
assigned  all  his  estate  to  him  as  such  security,  presentment  and 
notice  to  him  are  excused. 

Delay  in  presentment,  or  in  giving  notice  of  dishonor,  is  excused 


Chap.  40.]  CALIFORNIA.  129 

when  caused  by  circumstances  which  the  party  delaying  could  not 
have  avoided  by  the  exercise  of  reasonable  care  and  diligence. 

A  waiver  of  presentment  waives  notice  of  dishonor  also  ;  but  a 
waiver  of  notice  does  not  waive  presentment. 

A  waiver  of  protest  on  any  negotiable  instrument,  other  than  a 
foreign  bill  of  exchange,  waives  presentment  and  notice. 


CHAPTER  XL. 

PRINCIPAL  AND  AGENT. 

An  agent  is  one  who  represents  another,  called  the  principal,  in 
dealings  with  third  persons.  % 

Any  person  having  capacity  to  contract  may  appoint  an  agent, 
and  any  person  may  be  an  agent. 

An  agent  for  a  particular  act  or  transaction  is  called  a  special 
agent.  All  others  are  general  agents. 

An  agent,  unless  specially  forbidden  by  his  principal  to  do  so, 
can  delegate  his  powers  to  another  person  in  any  of  the  following 
cases,  and  in  no  others : 

1.  When  the  act  to  be  done  is  purely  mechanical. 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  sub- 
agent  can,  lawfully  perform. 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  powers. 

4.  When  such  delegation  is  specially  authorized  by  the  principal. 
If  an  agent  employs  a  sub-agent  without  authority,  the  former  is 

a  principal  and  the  latter  his  agent,  and  the  principal  of  the  former 
has  no  connection  with  the  latter. 

A  sub-agent,  lawfully  appointed,  represents  the  principal  in  like 
manner  with  the  original  agent ;    and  the   original  agent  is  not 
responsible  to  third  persons  for  the  acts  of  the  sub-agent. 
9 


130  CALIFORNIA.  [Part  3. 

An  agent  has  authority  to  do  everything  necessary  or  proper, 
and  usual,  in  the  ordinary  course  of  business,  fop  effecting  the 
purpose  of  his  agency. 

An  authority  to  sell  personal  property  includes  authority  to 
warrant  the  title  of  the  principal,  and  the  quality  and  quantity  of 
the  property. 

'  A  general  agent  to  .sell,  who  is  intrusted  by  the  principal  with 
the  possession  of  the  thing  sold,  has  authority  to  receive  the  price. 

A  special  agent  to  sell  has  authority  to  receive  the  price  on 
delivery  of  the  thing  sold,  but  not  afterwards. 


PART  IY. 


STATE   OF   NEVADA 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  BISHOP  &  SABIN,  PIOCHE 


CHAPTER  I. 


COURTS,  JURISDICTION,  AND  TERMS  OF  COURTS. 

UNITED  STATES  COURTS. 

I 

United  States  Circuit  Court,  Ninth  Circuit ;  composed  of  the 

Districts  of  California,  Nevada,  and  Oregon.  Judges — Stephen  J. 
Field,  Associate  Justice  U.  S.  Supreme  Court ;  Lorenzo' Sawyer, 
Circuit  Judge,  of  San  Francisco,  California  ;  District  Judge,  E.  W. 
Hillyer,  of  Carson  City,  Nevada.  U.  S.  Attorney,  C.  S.'Varian, 
of  Carson  City.  Marshal,  R.  S.  Clapp,  Carson  City.  Clerk,  R. 
M.  Daggett,  Virginia  City. 

Terms  of  U.  S.  Circuit  Court — At  Carson  City,  second  Mondays 
in  March,  June  and  October. 

Terms  of  U.  S.  District  Court — At  Carson  City,  first  Mondays 
in  February,  May  and  October. 

(For  the  jurisdiction  of  the  United  States  Courts,  see  Part  II.) 


132  NEVADA.  [Part  4. 


STATE  COURTS. 

One  Supreme  Court,  and  nine  District  Courts. 

The  Supreme  Court  consist  of  three  judges.  The  oldest  in  com- 
mission acts  as  chief  justice.  Judge — Thomas  P.  Hawley,  C.  J.; 
Warner  Earll  and  Wm.  H.  Beatty,  Associate  Justices.  Clerk, 
Charles  F.  Bicknall.  All  reside  at  Carson  City. 

Regular  Terms — First  Mondays  of  January,  April,  July  and 
October. 

The  Supreme  Court  shall  have  appellate  jurisdiction  in  all  cases 
in  equity ;  also  in  all  cases  at  law  in  which  is  involved  the  title  or 
right  of  possession  to,  or  the  possession  of,  real  estate  or  mining 
claims,  or  the  legality  of  any  tax,  impost,  assessment,  toll,  or  munic- 
ipal fine,  or  in  which  the  demand,  (exclusive  of  interest)  or  the 
value  of  the  property  in  controversy,  exceeds  three  hundred  dol- 
lars ;  also  in  all  other  civil  cases  not  included  in  the  general  subdi- 
vision of  law  and  equity,  and  also  on  questions  of  law  alone,  in  all 
criminal  cases  in  which  the  offense  charged  amounts  to  felony.  The 
Court  shall  also  have  power  to  issue  writs  of  mandamus,  certiorari, 
prohibition,  quo  warranto  and  habeas  corpus,  and  also  all  writs 
necessary  or  proper  to  the  complete  exercise  of  its  appellate  juris- 
diction. Each  of  the  justices  shall  have  power  to  issue  writs  of 
habeas  corpus  to  any  part  of  the  State,  upon  petition  by,  or  on  be- 
half of,  any  person  held  in  actual  custody,  and  may  make  such 
writs  returnable  before  himself  or  the  Supreme  Court,  or  before 
any  District  Court  in  the  State,  or  before  any  judge  of  said  Courts. 

DISTRICT  COURTS. 

Jurisdiction. — The  District  Courts  in  the  several  judicial  districts 
of  this  State  shall  have  original  jurisdiction  in  all  cases  in  equity  ; 
also  in  all  cases  at  law  which  involve  the  title  or  the  right  of  pos- 
session to,  or  the  possession  of,  real  property  or  mining  claims,  or 
the  legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine, 
and  in  all  other  cases  in  which  the  demand,  (exclusive  of  interest) 
or  the  value  of  the  property  in  controversy,  exceeds  three  hundred 
dollars;  also  in  all  cases  relating  to  the  estates  of  deceased 


Chap.  1.] 


NEVADA. 


133 


persons,  and  the  persons  and  estates  of  minors  and  insane  persons, 
and  of  the  action  of  forcible  entry  and  unlawful  detainer ;  and  also 
in  all  criminal  cases  not  otherwise  provided  for  by  law.  They 
shall  also  have  final  appellate  jurisdiction  in  cases  arising  in  Jus- 
tices' Courts  and  such  other  inferior  tribunals  as  may  be  established 
by  law.  The  District  Courts,  and  the  judges  thereof,  shall  have 
power  to  issue  writs  of  mandamus,  injunction,  quo  warranto,  certio- 
rari,  and  all  other  writs  proper  and  necessary  to  the  complete  exer- 
cise of  their  jurisdiction ;  and  also  have  power  to  issue  writs  of 
habeas  corpus,  on  petition  by,  or  on  behalf  of,  any  person  held  in 
custody  in  their  respective  districts. 

TIMES  FOR  HOLDING  DISTRICT  COURTS  FOR  1876. 


COUNTY. 

COUNTY  SEAT. 

DIST. 

WHEN   HELD. 

Virginia  City 

1st  ... 

First  Monday  of  January,  March,  June,  and  October. 

Orinsby  
Washoe 

Carson  
Reno  

2d.... 
2d  

First  Monday  of  February.  June,  and  November. 
First  Monday  of  January,  March.  June,  and  October. 

Douglas  
Lyon  
Hmnboldt..  . 
Churchill 

Genoa  
Dayton  
Winnemucca.  .. 
Stillwater 

2d.... 
»d.... 
4th... 
5th. 

First  Monday  of  May  and  December. 
First  Monday  of  Febiuary,  May,  August  and  November. 
First  Monday  of  January.  April,  July,  and  October. 
First  Mondwy  of  May  and  December. 

Lander  

Nye 

Austin  
Belmont 

5th... 
5th... 

First  Monday  of  January,  June,  and  October. 
First  Monday  of  March,  August,  and  November. 

Eureka  

Eureka  

6th... 

First  Monday  of  March,  July,  and  November. 

White   Pine. 
Lincoln  

Hamilton  
Pioche  
Aurora.  .. 

6th... 
7th... 
8th  . 

First  Monday  of  January,  May,  and  September. 
First  Monday  of  January.  April,  July,  and  October. 
First  Monday  of  June  and  December. 

Elko  s 

Elko  

9th... 

First  Monday  of  February,  June,  and  October. 

JUSTICES'  COURTS. 

Justices  of  the  peace  have  jurisdiction  in  all  civil  cases  when  the 
demand,  (exclusive  of  interest)  does  not  exceed  three  hundred  dol- 
lars. Are  always  open. 


134  NEVADA.  [Part  4. 


CHAPTER   II. 

TIME  ALLOWED    TO  ANSWER— SERVICE   BY  PUBLI- 
CATION—PLACE OF  TRIAL. 

Defendant  has  ten  days  to  answer  summons,  exclusive  of  day  of 
service,  from  date  of  service,  when  served  within  the  county, 
twenty  days  when  served  in  the  district  but  in  another  county  than 
the  one  where  the  action  was  commenced,  and  in  all  other  cases 
forty  days,  when  personal  service  is  had. 

Service  by  publication  may  be  had  on  defendant,  upon  filing  of 
proper  affidavit  therefor.  Summons  to  be  published  once  a  week 
for  at  least  one  month,  against  defendants  residing  in  the  States 
of  California  or  Oregon,  and  the  Territories  of  Utah  and  Wash- 
ington ;  in  all  other  cases  the  publication  of  summons  to  be  for 
not  less  than  three  months. 

PLACE  OF  TRIAL. 

All  actions  pertaining  to  real  estate,  or  to  the  recovery  thereof, 
or  any  interest  therein,  must  be  commenced  in  the  county  wherein 
the  real  estate  is  situated.  Transitory  actions  follow  the  person. 

PROVISIONS  IN  JUSTICES'  COURTS. 

Defendant  must  be  sued  in  the  township  in  which  he  lives,  unless 
he  is  served  with  summons  in  the  county-seat,  or  has  contracted  to 
perform  an  obligation  at  a  particular  place ;  in  which  cas'e  he  may 
be  sued  in  the  township,  city,  or  precinct  where  such  obligation  is 
to  be  performed,  or  in  the  township  in  which  he  resides.  Service 
must  be  made  from  one  to  ten  days  before  return  day  of  sum- 
mons. 


Chap.  3.]  NEVADA.  135 


CHAPTER  III. 

LIMITATION  OF  ACTIONS. 

Civil  actions,  except  for  recovery  of  real  property,  can  only  be 
commenced  as  follows  : 

Within  Five  Years. — Upon  a  judgment  or  decree  of  any  Court 
of  the  United  States,  or  of  any  State  or  Territory  within  the  Unit- 
ed States. 

Within  Four  Years. — Upon  any  contract,  obligation,  or  liability 
founded  upon  an  instrument  in  writing. 

Within  Three  Years. — Upon  a  liability  created  by  statute, 
other  than  a  penalty  or  forfeiture  ;  for  trespass  upon  real  property  ; 
for  taking,  detaining,  or  injuring  any  goods  or  chattels  ;  including 
actions  for  the  specific  recovery  of  personal  property  ;  for  relief  on 
the  ground  of  fraud ;  the  cause  of  action  not  deemed  to  have  ac- 
crued until  discovery  by  party  aggrieved  of  facts  constituting  a 
fraud. 

Within  Two  Years. — Upon  a  contract,  obligation,  or  liability 
not  founded  upon  a  written  instrument. 

Against  a  sheriff,  coroner,  or  constable,  upon  the  liability  incur- 
ed  by  the  doing  of  an  act  in  his  official  capacity  and  in  virtue  of 
his  office,  or  an  omission  of  an  official  duty,  including  non-pay- 
ment of  money  collected  upon  execution.  •  Upon  statute  for  a  pen- 
alty or  forfeiture  where  the  action  is  given  to  an  individual,  or  to 
an  individual  and  the  State,  except  when  the  statute  imposing  it  fixes 
a  different  limitation.  For  libel,  slander,  assault,  battery,  or  false 
imprisonment.  Upon  statute  for  forfeiture  or  penalty  to  the  State. 
Against  a  sheriff  or  other  officer,  for  escape  of  a  prisoner  arrested  or 
imprisoned  on  civil  process.  On  open  account  for  goods,  wares  or 
merchandise  sold  and  delivered.  For  any  article  charged  in  a 
store  acconnt.  In  case  of  mutual  accounts,  the  statute  begins  to 
run  from  date  of  last  entry  in  account  of  either  party. 

In  all  other  cases,  within  four  years  after  cause  of  action  accrued. 


136  NEVADA.  [Part  4. 

G-eneral   Provisions. 

Limitation  does  not  run  against  a  party  during  absence  from 
State,  and  if  when  a  cause  of  action  shall  accrue  against  a  party, 
he  be  out  of  the  State,  the  action  may  be  commenced  within  the 
time  limited  after  his  return  to  the  State. 

The  statute  does  not  run  against  a  married  woman,  or  a  person 
under  the  age  of  twenty-one  years ;  one  insane,  or  imprisoned  on 
criminal  charge,  where  term  of  imprisonment  does  not  extend  to 
life. 

An  action  upon  a  judgment,  contract,  obligation,  or  liability,  for 
the  payment  of  money  or  damages  obtained,  made,  executed,  or 
issued  out  of  the  State,  can  only  be  commenced  as  follows  : 

1.  Within  one  year,  when  prior  to  passage  of  the  act,  (March 
5,  1867)  more  than  two  and  less  than  five  years  have  elapsed  since 
the  cause  of  action  accrued. 

2.  Within  six  months,  when  prior  to  the  passage  of  the  act, 
more  than  five  years  have  elapsed  since  the  cause  of  action  ac- 
crued. 

3.  Within  two  years,  in  all  other  cases,  after  the  cause  of  action 
accrued ;  a  right  of  action  shall  be  deemed  to  have  accrued  on  a 
judgment  at  the  time  of  its  rendition. 

When  the  cause  of  action  has  arisen  in  any  other  State  or  Ter- 
ritory of  the  United  States,  or  in  a  foreign  country,  and  by  the 
laws  thereof  an  action  cannot  be  maintained  against  a  person  by 
reason  of  the  lapse  of  time,  no  action  thereon  shall  be  maintained 
against  him  in  this  State. 

No  acknowledgment  or  new  promise  shall  take  the  case  out  of  the 
statute,  except  it  be  in  writing,  signed  by  the  party  to  be  charged. 

Actions  for  recovery  of  possession  of  real  estate  must  be  com- 
menced within  five  years,  except  actions  for  the  recovery  of  mining 
ground,  which  must  be  commenced  within  two  years,  from  time 
cause  of  action  accrued. 


Chaps.  4, 5.]  NEVADA.  137 

CHAPTER  IV. 

ATTACHMENTS. 

Writ  of  attachment  may  be  issued  with  summons,  or  at  any  time 
afterwards : 

1.  In  an  action  upon  a  contract   for  the  direct   payment  of 
money,  made,  or  by  the  terms  thereof,  payable  in  this  State,  which 
is  not  secured  by  mortgage,  lien,  or  pledge  upon  real  or  personal 
property,  situated  or  being  in  the  State  ;  if  so  secured,  when  such 
security  has  been  rendered  nugatory  by  the  act  of  the  defendant. 

2.  In  an  action  upon  a  contract  against  a  defendant  not  residing 
in  this  State. 

Writ  to  be  issued  upon  filing  of  an  affidavit  to  be  made  by  plaint- 
iff, or  some  one  on  his  behalf,  setting  forth  the  statutory  grounds 
for  issuance  of  the  writ. 

Plaintiff  must  give  bond  to  secure  defendant  against  damage 
arising  from  the  issuance  of  the  writ,  in  case  the  attachment  is  dis- 
missed, or  the  defendant  recover  in  the  action. 

Keal  and  personal  property,  debts  and  credits,  stocks  or  shares 
in  any  corporation,  may  be  attached  in  the  manner  pointed  out  by 
the  statute. 


CHAPTER  Y. 

ARREST  IN  CIVIL  ACTIONS. 

The  defendant  may  be  arrested  in  the  following  cases  : 
1.  In  an  action  for  the  recovery  of  money  or  damages,  on  a 
cause  of  action  arising  upon  contract,  express  or  implied,  when  the 


138  NEVADA.  [Part  4. 

defendant  is  about  to  depart  from  the  State  with  intent  to  defraud 
his  creditors,  or  when  the  action  is  for  libel  or  slander. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied  or  converted  to  his  own  use 
by  a  public   officer,  or  an  officer  of  a  corporation,  or  an  attorney, 
factor,  broker,  agent,  or  clerk,  in  the  course  of  his  employment  as 
such,  or  jby  any  other  person  in  a  fiduciary  capacity,  or  for  miscon- 
duct or  neglect  in  office,  or  in  professional  employment,  or  for  will- 
ful violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property  or  any  part  thereof  has  been 
concealed,  removed,  or  disposed  of,  so  that  it  cannot  be  found  or 
taken  by  the  sheriff. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contract- 
ing  the  debt  or  incurring   the  obligation  for  which  the  action  is 
brought,  or  in  concealing  or  disposing  of  the  property,  for  the  tak- 
ing, detention,  or  conversion  of  which  the  action  is  brought. 

.  5.  When  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

The  order  of  arrest  is  only  issued  upon  filing  an  affidavit  and 
bond  as  required  by  statute — bond  to  be  for  a  sum  not  less  than 
four  hundred  dollars. 


CHAPTER  VI. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

From  time  judgment  is  docketed  it  becomes  a  lien  upon  all  real 
property  of  the  judgment  debtor,  not  exempted  from  execution  in 
the  county,  owned  by  him  at  the  time,  or  which  he  may  afterwards 
acquire,  until  the  lien  expires.  Lien  of  judgment  continues  for  two 
years,  unless  the  judgment  be  previously  satisfied.  Personal  prop- 


Chap.  7.]  NEVADA.  139 

erty,  not  exempt  from  execution,  is  only  held  for  satisfaction  of  judg- 
ment after  the  levy  of  execution  thereon. 


•  .  CHAPTER  VII. 

EXECUTIONS,    EXEMPTIONS,    SALE,    AND    KEDEMP- 

TION. 

Execution  may  issue  for  the  enforcement  of  a  judgment  at  any 
time  within  five  years  after  the  entry  thereof,  and  may  be  issued  to 
the  sheriff  of  any  county  in  the  State  in  proper  cases. 

EXEMPTIONS. 

The  following  property  of  the  judgment  debtor  is  exempt  from 
execution  : 

1.  Chairs,  tables,  desks,  and  books  to  the  value  of  $100. 

2.  Necessary  household  furniture,  wearing  apparel,  beds,  bed- 
ding, provisions,  and  firewood  sufficient  for  one  month. 

3.  Farming  utensils  ;  also  two  oxen  or  two  horses,  or  two  mules 
and  their  harnesses ;  two  cows,  one  cart  or  wagon ;  and  food  for 
such  oxen,  horses,  cows  or  mules,  for  one  month ;  also  all  seed 
grain  or  vegetables  actually  provided,  reserved,  or  on  hand  for  the 
purpose  of  planting  or  sowing,  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  $400. 

4.  The  tools  and  implements  of  a  mechanic  or  artisan  necessary 
to  carry  on  his  trade ;  the  instruments  and  chests  of  a  surgeon, 
physician,  surveyor,  and  dentist,  necessary  to  the  exercise  of  their 
profession,  with  their  scientific  and  professional  libraries,  and  the 
libraries  of  an  attorney  or  counsellor,  and   the  libraries   of  min- 
isters of  the  gospel. 


140  NEVADA.  [Part  4. 

5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in  value 
•$500  ;  also  all  tools  and  implements  necessary  for  carrying  on  any 
mining  operation  not  exceeding  in  value  $500 ;   and  two  horses, 
mules,  or  oxen,  with  their  harnesses,  and  food  for  the  same  for  one 
month,  when  necessary  to  be  used  in  such  mining  operations. 

6.  Two  oxen,  two  horses,  or  two  mules,  and  their  harness,  and 
one  cart  or  wagon,  by  the  use  of  which  a  cartman,  huckster,  ped- 
dler, teamster,  or  other  laborer,  habitually  earns  his  living ;  and 
one  horse,  with  vehicle  and  harness,  or  other  equipments  used  by  a 
physician  or  surgeon  or  minister  of  the  gospel  in  making  his  pro- 
fessional visits,  and  food  for  such  oxen,  mules,  or  horses,  for  one 
month. ' 

7.  One  sewing  machine,  not  exceeding  in  value  $150,  in  actual 
use  by  the  debtor  or  his  family. 

8.  All  fire  engines,  hooks  and  ladders,  and  all  apparatus  and 
furniture  belonging  to  any  fire  company  or  department. 

9.  All  arms,  uniforms,  and  accoutrements  required  by  law  to  be 
kept  by  any  person. 

10.  All  court  houses,  jails,  public  offices  and  buildings,  lots, 
grounds,  and   personal  property ;   the  fixtures,  furniture,  books, 
papers,  and  appurtenances  belonging  and  pertaining  to  the  court 
house,  jail,  and  public  offices  belonging  to  any  county  in  this  State  ; 
and  all  cemeteries,  public  squares,  parks  and  places,  public  build- 
ings, town  halls,  public  markets,  buildings  for  the  use  of  the  fire 
departments  and  military  organizations,  and  the  lots  and  grounds 
thereto  belonging  and  appertaining,  owned  or  held  by  any  town  or 
incorporated  city,  or  dedicated  by  such  town  or  city  to  health,  or- 
nament, or  public  use,  or  for  the  use  of  any  fire  or  military  com- 
pany organized  under  the  laws  of  this  State. 

11.  None  .of  the  above  articles  or  species  of  property  are  exempt 
from  execution  issued  upon  a  judgment  recovered  for  'its  price,  or 
upon  a  mortgage  thereon. 

12.  The  earnings  of  a  judgment  debtor  arising  from  his  personal 
services  for  the  thirty  days  preceding  the  making  of  the  order,  (in 
supplemental  proceedings)  to  the  extent  of  fifty  dollars,  are  exempt, 
when  it  shall  be  made  to  appear  by  the  debtor's  affidavit,  or  other- 


Chap.  8.]  NEVADA.  141 

wise,  that  such  earnings  are  necessary  for  the  use  of  a  family  sup- 
ported wholly  or  partially  by  his  labor. 

For  homestead  exemption,  see  "  Homesteads." 

SALE. 

Real  property  may  be  sold  upon  twenty  days'  notice,  given  as 
required  by  law ;  and  personal  property  after  five  days'  notice  of 
the  time  and  place  of  sale,  as  required  by  law. 

REDEMPTION. 

Real  estate  sold  upon  execution  or  order  of  sale,  upon  mortgage 
or  otherwise,  may  be  redeemed  by  the  judgment  debtor,  or  his  suc- 
cessors in  interest  in  the  whole  or  any  part  of  the  property  ;  or  by 
a  creditor  having  a  lien  by  judgment  or  mortgage  upon  the  prop- 
erty sold,  or  some  share  or  part  thereof  subsequent  to  that  upon 
which  the  property  was  sold,  within  six  months  from  the  date  of 
sale.  Real  property  sold  for  taxes  is  not  subject  to  redemption. 
Personal  property,  sold  upon  execution,  is  not  subject  to  redemption. 


CHAPTER  VIII. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 

Upon  return  of  execution  unsatisfied,  in  whole  or  in  part,  issued 
upon  any  judgment,  the  defendant  may  be  required  to  appear  be- 
fore the  Court,  and  answer  under  oath  concerning  his  property. 


142  NEVADA.  [Part  4. 

CHAPTER  IX. 

SECURITY  FOR  COSTS. 

When  plaintiff  is   a  non-resident,  or  is   a  foreign  corporation, 
security  for  costs  may  be  required.  , 


CHAPTER  X. 

APPEALS. 

An  appeal  from  a  judgment  rendered  in  a  Justice's  Court  may  be 
taken  to  the  district  court  within  thirty  days  after  entry  of  judg- 
ment, upon  filing  a  bond  with  two  sufficient  sureties  for  double 
the  amount  of  judgment  and  costs,  in  case  stay  of  execution  is  de- 
manded. 

An  appeal  may  be  taken  from  the  District  to  the  Supreme  Court  : 

1.  From  a  final  judgment  in  action  or  special  proceeding   com-* 
menced  in  the  Court  in  which  the  judgment  is  rendered,  within  one 
year  after  the  rendition  of  judgment. 

2.  From  an  order  granting  or  refusing  a  new  trial,  from  an  order 
granting  or  dissolving  an  injunction,  and  from  an  order  refusing  to 
grant  or  dissolve  an  injunction,  and  from  any  special  order  made 
after  the  final  judgment,  within  sixty  days  after  the  order  is  made 
and  entered  in  the  minutes  of  the  Court. 

3.  From  an  interlocutory  judgment  or  order  in  cases  of  parti- 
tion which  determines  the  rights  of  the  several  parties,  and  directs 
partition,  sale,  or  division  to  be  made,  within  sixty  days  after  the 
rendition  of  the  same. 


Chap.  11.]  NEVADA.  143 

In  all  cases  of  appeal  to  the  Supreme  Court,  a  bond  must  be 
filed  in  the  sum  of  $300  for  payment  of  costs  of  appeal ;  and  in 
case  a  stay  of  execution  is  demanded,  then  an  additional  bond  must 
be  filed  in  a  sum  for  double  the  amdunt  of  the  judgment  and  costs. 
Bonds  to  be  given  by  appellant,  and  to  be  executed  by  two  or  more 
sureties. 


CHAPTER  XI. 


ESTATES  OF  DECEASED  PERSONS. 

Claims  against  estates  of  deceased  persons  must  be  presented, 
proved,  and  allowed  within  ten  months  after  the  ,first  publication  of 
administrator's  or  executor's  notice  to  creditors,  excepting  claims  of 
persons  who  are  non-residents  of  the  State,  who  have  not  had 
actual  notice;  they  may  present  their  claims  at  any  time  before 
distribution  of  estate.  Claims  may  be  verified  by  residents  before 
any  officer  authorized  to  administer  oaths  within  the  State.  An 
affidavit  taken  before  a  justice  of  the  peace  of  any  other  county  in 
the  State  except  the  one  where  the  administrator  or  executor  re- 
sides, must,  to  entitle  it  to  be  used  or  filed,  contain  a  certificate  of 
the  clerk  of  the  county  where  such  justice  resides,  reciting  the  facts 
that  said  justice  is  duly  commissioned  and  acting  as  such  justice  of 
the  peace ;  that  the  signature  of  such  justice  is  genuine,  and  that 
full  faith  and  credit  are  due  to  all  his  official  acts. 

Affidavits  to  correctness  of  accounts  and  claims,  when  made  out 
of  the  State  of  Nevada,  must,  to  insure  their  reception,  be  verified 
before  some  judge  of  a  Court  having  a  seal,  under  the  seal  thereof, 
or  a  commissioner  .of  deeds  duly  commissioned  and  qualified,  of  the 
State  of  Nevada,  or  before  a  notary  public  whose  official  character 


144  NEVADA.  [Part  4. 

is  duly  certified  to  by  the  secretary  of  State  or  Territory  in  which 
he  and  the  party  making  proof  reside. 

Time  in  which  the  estate  must  be  settled  not  limited  by  statute  ; 
it  is  subject  to  the  order  of  the  Court. 

District  Courts  have  sole  jurisdiction  of  all  original  proceedings 
in  probate  matters. 


CHAPTER  XII. 

HOMESTEADS. 

The  homestead  of  a  judgment  debtor,  consisting  of  a  quantity  of 
land,  together  with  the  dwelling  house  thereon  and  its  appurte- 
nances, not  exceeding  in  value  five  thousand  dollars,  to  be  selected 
by  husband  and  wife,  or  either  of  them,  or  other  head  of  the  fam- 
ily, is  exempt  from  forced  sale  on  execution  or  other  process  from 
any  Court. 

Homesteads  are  declared  as  follows  : 

The  selection  to  be  made  by  either  the  husband  or  wife,  or  both 
of  them,  or  other  head  of  a  family,  declaring  their  intention  in 
writing  to  claim  the  same  as  a  homestead.  The  same  to  be  duly 
acknowledged  and  recorded  as  conveyances  affecting  real  estate. 

Declaration  of  intention  to  claim  arid  hold  a  homestead  may  be 
made  at  any  time  prior  to  sale  on  execution  or  other  process,  ex- 
cepting on  sale  of  premises,  on  foreclosure  of  mortgage  upon  the 
premises  executed  by  husband  and  wife  ;  or  where  the  judgment 
is  for  the  purchase  price  of  the  property  claimed  as  a  homestead. 
This  exemption  does  not  extend  to  any  mechanic's,  laborer's  or 
vendor's  lien  upon  the  premises. 

The  homestead  may  be  abandoned  by  a  declaration  in  writing, 
signed  and  acknowledged  by  husband  and  wife,  and  recorded  in 


Chap.  13.]  NEVADA.  145 

the  office  of  the  county  recorder,  in  the  same  manner  as  the  dec- 
laration to  claim  the  same  is  required  to  be  acknowledged  and  re- 
corded. On  the  death  of  husband  or  wife,  the  homestead  and  other 
property  exempt  from  sale  on  execution  is  required  to  be  set  apart 
by  the  Court  for  the  benefit  of  the  surviving  husband  or  wife,  and 
his  or  her  legitimate  children. 

In  cases  where  homestead  property  is  appraised  at  a  sum  ex- 
ceeding five  thousand  dollars,  the  same  may  be  sold,  and  the  sum 
realized  on  sale  in  excess  of  five  thousand  dollars  and  costs  will 
pass  to  judgment  creditor. 


CHAPTER  XIII. 

OF  WITNESSES  AND  DEPOSITIONS. 

Parties  to  the  action  are  not  excluded  from  being  witnesses  upon 
the  ground  of  interest,  except — 

1.  That  no  party  to  an  action  or  proceeding  is  allowed  to  testify 
therein,  when  the  opposite  party  is  the  representative  of  a  deceased 
person,  when  the  facts  to  be  proved  transpired  before  the  death  of 
such  deceased  person. 

2.  Persons  convicted  of  felony,  unless  pardoned,  or  the  judg- 
ment is  reversed  on  appeal,  cannot  be  witnesses. 

3.  Attorneys  or  counsellors  cannot,  except  by  consent  of  their 
client,  be  examined  as  to  any  confidential  communications  made  to 
them  in  the  course  of  their  professional  employment,  and  the  like 
rule  applies  to  physicians,  surgeons,   clergymen   or   priests,  with 
respect  to  confidential  communications  made  to  them  in  their  pro- 
fessional capacity. 

4.  Husband  or  wife  cannot  be  witnesses  for  or  against  each 
other,  except  in  actions  brought  by  one  against  the  other. 

10 


146  NEVADA.  [Part  4. 

5.  Public  officers  cannot  be  examined  as  witnesses  in  reference 
to  communications  made  to  them  in  official  confidence,  when  the 
public  interest  would,  by  such  disclosures,  be  injured. 

6.  Laws  relative  to  the  attestation  of  instruments  required  to  be 
attested  are  reserved  from  the  operation  of  the  statute  allowing 
parties  in  interest  to  testify. 

Negroes  can  testify  in  all  cases  where  whites  are  permitted  to 
act  as  witnesses. 

The  testimony  of  a  witness  in  this  State  may  be  taken  in  an 
action  at  any  time  after  the  service  of  the  summons,  or  the  appear- 
ance of  the  defendant ;  and  in  a  special  proceeding,  after  a  question 
of  fact  has'  arisen  therein,  in  the  following  cases  : 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding,  or  a 
person  for  whose  immediate  benefit  the  action  or  proceeding  is 
prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in  which  his  tes- 
timony is  to  be  used. 

3.  When  the  witness  is  about  to  leave  the  county  where  the  ac- 
tion is  to  be  tried,  and  will  probably  continue  absent  when  the  tes- 
timony is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial,  is  nev- 
ertheless too  infirm  to  attend ;   or  resides  within  the  couuty,  but 
more  than  fifty  miles  from  the  place  of  trial. 

The  deposition  may  be  taken  before  any  judge,  or  clerk  of  a 
Court,  or  any  justice  of  the  peace  or  notary  public  in  this  State,  on 
serving  upon  the  adverse  party  previous  notice  of  the  time  and 
place  of  the  examination,  together  with  a  copy  of  an  affidavit  show- 
ing that  the  case  is  one  mentioned  as  above  stated.  Such  notice 
shall  be  at  least  five  days,  and  in  addition  one  day  for  every  twen- 
ty-five miles  of  the  distance  of  the  place  of  examination  from  the 
residence  of  the  person  upon  whom  notice  is  served,  unless,  for 
cause  shown,  a  judge,  by  order,  prescribe  a  shorter  time.  Either 
party  may  attend  such  examination,  and  put  such  questions,  direct 
and  cross,  as  may  be  proper. 

The  deposition,  when  completed  and  corrected,  shall  be  signed 
by  the  witness  and  sealed  and  directed  to  the  clerk  of  the  Court 
in  which  the  action  is  pending,  or  to  such  person  as  the  parties,  in 


Chap.  13.]  NEVADA.  147 

.writing,  may  agree  upon,  and  either  delivered  by  the  officer  taking, 
the  same  to  the  clerk  or  such  person,  or  transmitted  through  the 
mail,  or  by  some  safe  private  opportunity  ;  and  such  deposition  may 
be  used  by  either  party  upon  the  trial  against  any  party  giving  or 
receiving  such  notice,  subject  to  all  legal  objections.  If  the  par- 
ties attend,  at  the  examination,  no  objection  to  the  form  of  an  inter- 
rogatory shall  be  made  at  the  trial,  unless  the  same  was  stated  at 
the  time  of  the  examination. 

If  the  deposition  to  be  taken  be  by  the  reason  of  the  absence  or  in- 
tended absence  from  the  county  of  the  witness,  or  because  he  is  too 
infirm  to  attend,  proof,  by  affidavit  or  oral  testimony,  shall  be  made 
at  the  trial  that  the  witness  continues  absent  or  infirm,  to  the  best 
of  deponent's  knowledge  or  belief. 

Depositions  thus  taken  may  be  also  read,  in  case  of  the  death  of 
the  witness. 

When  a  deposition  has  been  once  taken,  it  may  be  read  in  any 
stage  of  the  same  action  or  proceeding  by  either  party,  and  shall 
then  be  deemed  the  evidence  of  the  party  reading  it. 

DEPOSITIONS  TAKEN  OUT  OF  THE  STATE. 

The  testimony  of  a  witness  out  of  the  State  may  be  taken  by 
deposition  in  an  action  at  any  time  after  the  service  of  the  sum- 
mons, or  the  appearance  of  the  defendant ;  and  in  a  special  pro- 
ceeding, at  any  time  after  a  question  of  fact  has  arisen  therein. 

The  deposition  of  a  witness  out  of  the  State  shall  be  taken  upon 
commission  issued  from  the  Court,  under  the  seal  of  the  Court,  up- 
on an  order  of  the  judge  or  Court,  on  the  application  of  either  par- 
ty, upon  five  days'  previous  notice  to  the  other.  It  shall  be  issued 
to  a  person  agreed  upon  by  the  parties,  or  if  they  do  not  agree,  to 
any  judge  or  justice  of  the  peace  selected  by  the  officer  granting 
the  commission,  or  to  a  commissioner  appointed  by  the  governor  of 
this  State  to  take  affidavits  and  depositions  in  other  States  or  Ter- 
ritories. 

Such  proper  interrogatories,  direct  and  cross,  as  the  respective 
parties  may  prepare,  to  be  settled,  if  the  parties  disagree  as  to  their 
form,  by  the  judge  or  officer  granting  the  order  for  the  commission, 


148  NEVADA.  [Part  4. 

at  a  day  fixed  in  the  order,  or  at  the  time  of  granting  the  order  for 
commission,  may  be  annexed  to  the  commission  ;  or,  when  the  par- 
ties agree  to  that  mode,  the  examination  may  be  without  written  in- 
terrogatories. 

The  commission  shall  authorize  the  commissioner  to  administer 
an  oath  to  the  witness,  and  to  take  his  deposition  in  answer  to  the 
interrogatories,  or  when  the  examination  is  to  be  without  interroga- 
tories in  respect  to  the  questions  in  dispute,  and  to  certify  the  depo- 
sition to  the  Court,  in  a  sealed  envelope  directed  to  the  clerk  or 
other  person  designed  or  agreed  upon,  and  forward  to  him  by 
mail,  or  other  usual  channel  of  conveyance. 


CHAPTER  XIV. 

JUDICIAL  RECORDS,  HOW  PROVED. 

A  judicial  record  of  this  State,  or  the  United  States,  or  any  Ter- 
ritory, may  be  proved  by  the  production  of  the  original,  or.  a  copy 
thereof,  certified  by  the  clerk  or  other  person  having  the  legal  cus- 
tody thereof,  under  the  seal  of  the  Court,  to  be  a  true  copy  of  such 
record. 

The  records  and  judicial  proceedings  of  the  Courts  of  any  other 
State  of  the  United  States,  or  of  any  Territory,  may  be  proved  or 
admitted  in  the  Courts  of  this  State,  by  the  attestation- of  the  clerk 
and  seal  of  the  Court  annexed,  if  there  be  a  seal,  together  with  a 
certificate  of  the  judge,  chief  justice,  or  presiding  magistrate,  as  the 
case  may  be,  that  the  said  attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
production  of  a  copy  thereof,  certified  by  the  clerk,  with  the  seal 
of  the  Court  annexed,  if  there  be  a  seal,  or  by  the  legal  keeper  of 
the  record,  with  the  seal  of  his  office  annexed,  if  there  be  a  seal, 


Chap.  15.]  NEVADA.  149 

to  be  a  true  copy  of  such  record,  together  with  a  certificate  of  a 
judge  of  the  Court  that  the  person  making  the  certificate  is  the 
clerk  of  the  Court,  or  the  legal  keeper  of  the  record,  and  in  either 
case  that  the  signature  is  genuine,  and  the  certificate  in  due  form ; 
and,  also,  together  with  the  certificate  of  the  minister  or  embassa- 
dor  of  the  United  States,  or  of  a  consul  of  the  United  States, 
in  such  foreign  country,  that  there  is  such  a  Court,  specifying 
generally  the  nature  of  its  jurisdiction,  and  verifying  the  signa- 
ture of  the  clerk  and  judge,  or  other  legal  keeper  of  the  record. 
Second.  A  copy  of  the  judicial  record  of  a  foreign  country  shall 
also  be  admissible  in  evidence  upon  proof: 

1.  That  the  copy  offered  has  been  compared  by  the  witness  with 
the  original,  and  is  an  exact  transcript  of  the  whole  of  it. 

2.  That  such  original  was  in  the  custody  of  the  clerk  of  the  Court 
or  other  legal  keeper  of  the  same  ;  and, 

3.  That  the  copy  is  duly  attested  by  a  seal,  which  is  proved  to 
be  the  seal  of  the   Court  where  the  record  remains,  if  it   be  the 
record  of  a  Court ;  or  if  there  be  no  such  seal,  or  if  it  be  not  the 
record  of  a  Court,  by  the  signature  of  the  legal  keeper  of  the 
original. 


CHAPTER   XY. 

ACKNOWLEDGMENTS. 

The  proof  or  acknowledgment  of  every  conveyance  affecting 
any  real  estate  shall  be  taken  by  some  one  of  the  following  offic- 
ers: 

1.  If  acknowledged  or  proved  within  this  State,  by  some  judge 
or  clerk  of  a  Court  having  a  seal,  or  some  notary  public,  or  justice 
of  the  peace  :  Provided,  when  the  acknowledgment  is  taken  be- 
fore a  justice  of  the  peace  in  anj  other  county  than  that  in  which 


150  NEVADA.  [Part  4. 

the  real  estate  is  situated,  the  same  shall  be  accompanied  with  the 
certificate  of  the  clerk  of  the  District  Court  of  such  county,  as  to 
the  official  character  of  the  justice  taking  the  proof  or  acknowledg- 
ment, and  the  authenticity  of  his  signature. 

2.  If  acknowledged  or  proved  without  this  State,  but  within  the 
United  States,  shall  be  taken  by  some  one  of  the  following  offi- 
cers : 

A  judge  or  clerk  of  a  Court  having  a  seal,  or  some  notary 
public  or  justice  of  the  peace,  or  by  any  commissioner  appointed 
by  the  Governor  of  this  State  for  thafr  purpose  :  Provided^  that 
when  the  acknowledgment  is  taken  by  a  justice  of  the  peace,  the 
same  shall  be  accompanied  by  the  certificate  of  the  clerk  of  a 
Court  of  record  of  the  county,  having  a  seal,  as  to  the  official 
character  of  the  justice  and  the  authenticity  of  his  signature. 

3.  If  acknowledged  or  proved  without  the  United  States,  by 
some  judge  or  clerk  of  any  Court  of  any  State,  Kingdom  or  Em- 
pire having  a  seal,  or  by  any  notary  public   therein,  or  by  any 
minister,  commissioner,  or  consul   of  the  United  States,  appointed 
to  reside  therein. 


CHAPTER  XYI. 

AFFIDAVITS,  BEFORE  WHOM  TO   BE  TAKEN. 

An  affidavit  to  be  used  before  any  Court,  judge,  or  officer  of  this 
State  may  be  taken  before  any  judge  or  clerk  of  any  Court,  or 
any  justice  of  the  peace,  or  notary  public  in  this  State. 

An  affidavit  taken  in  another  State,  or  in  a  Territory  of  the 
United  States,  to  be  used  in  this  -State,  shall  be  taken  before  a 
commissioner  appointed  by  the  Governor  of  this  State  to  take  affi- 
davits and  depositions  in  such  other  State  or  Territory,  or  before 
any  judge  of  a  Court  of  record  having  a  seal. 


Chap.  17.]  NEVADA.  151 

An  affidavit  taken  in  a  foreign  country,  to  be  used  in  this  State, 
shall  be  taken  before  an  embassador,  minister,  or  consul  of  the 
United  States,  or  before  any  judge  of  a  Court  of  record  having  a 
seal,  in  such  foreign  country. 

When  an  affidavit  is  taken  before  a  judge  of  a  Court  in  another 
State,  or  in  a  Territory  of  the  United  States,  or  in  a  foreign  coun- 
try, the  genuineness  of  the  signature  of  the  judge,  the  existence 
of  Court,  and  the  fact  that  such  judge  is  a  member  thereof,  shall 
be  certified  by  the  clerk  of  the  Court,  under  the  seal  thereof. 


CHAPTER   XVII. 

LIMITED    PARTNERSHIPS 

May  be  formed  for  the  transaction  of  mercantile,  mechanical, 
mining,  or  manufacturing  business  by  two  or  more  persons,  as 
provided  for  by  special  statute.  But  nothing  contained  in  the  act 
shall  authorize  such  partnerships  for  the  purpose  of  banking  or 
insurance. 

In  partnerships  of  this  character  there  shall  be  one  or  more 
members  of  the  firm  to  be  known  as  general  partners,  and  they 
are  individually  liable  for  the  debts  of  the  firm.  The  special  part- 
ners are  liable  for  the  firm  debts  to  the  extent  of  their  interest  in 
the  firm  property  or  assets ;  also  to  the  extent  of  any  sums  of 
money  by  them  received,  withdrawn,  or  divided,  with  interest 
thereon  from  the  time  they  were  so  withdrawn  from  the  firm. 

The  business  of  the  partnership  shall  be  conducted  under  a  firm 
name,  in  which  the  names  of  the  general  partners  only  shall  be  in- 
serted, and  the  general  partners  only  shall  transact  the  business. 
If  the  name  of  any  special  partner  shall  be  used  in  said  firm  with 
his  consent  or  privity,  or  if  he  shall  personally  make  any  contract 


152  NEVADA.  [Part  4. 

respecting  the  concerns  of  the  partnership  with  any  person  except 
the  general  partners,  he  shall  be  deemed  and  treated  as  a  general 
partner. 


CHAPTER    XVIII. 

• 

MARRIED  WOMEN 

May  become  sole  traders  upon  petition,  and  by  order  of  District 
Court. 

When  they  are  sole  traders,  they  become  liable  for  debts  in- 
curred in  the  conduct  of  the  business  authorized  to  be  carried  on 
by  them  as  such. 


CHAPTER  XIX. 

CORPORATIONS 

May  be  formed  for  all  purposes  under  general  statute. 
Stockholders  are  not  individually  liable  for  any  debt  of  the 
corporation. 


Chaps.  20,  21.]  NEVADA.  153 

CHAPTER  XX. 

CHATTEL  MORTGAGES. 

No  chattel  mortgage  upon  any  personal  property  shall  be  valid  for 
any  purpose,  except  possession  of  the  property  mortgaged  be  given 
to  and  continuously  retained  by  the  mortgagee,  except  that  grow- 
ing crops  may  be  mortgaged  by  the  execution,  acknowledgment 
and  record  of  a  mortgage,  with  delivery  of  possession. 


CHAPTER  XXI. 

INTEREST  AND  USURY. 

Where  there  is  no  express  contract  in  writing,  fixing  a  different 
rate  of  interest,  interest  shall  be  allowed  at  the  rate  of  ten  per 
cent,  per  annum  for  all  moneys  after  they  become  due  upon  any 
bond,  bill,  or  promissory  note,  or  other  instrument  in  writing,  on 
any  judgment  recovered  before  any  Court  in  this  State,  for  money 
lent,  money  due  on  settlement  of  acconnts  from  the  day  on  which 
the  balance  is  ascertained,  and  for  money  received  for  the  use  of 
another. 

Parties  may  agree  in  writing  for  the  payment  of  any  rate  of  in- 
terest whatever  upon  money  due,  or  to  become  due  on  any  con- 
tract. Judgments  rendered  upon  contracts  shall  conform  thereto, 
and  bear  the  interest  agreed  upon  by  the  parties,  which  shall  be 
specified  in  the  judgment :  Provided,  only  the  amount  of  the  origi- 
nal claim  or  demand  shall  draw  interest  after  judgment. 


154  NEVADA.  [Part  4. 

CHAPTER  XXII. 

PROMISSORY  NOTES  AND  BILLS  OF  EXCHANGE. 

All  notes  in  writing  made  and  signed  by  any  person,  whereby  he 
shall  promise  to  pay  to  any  other  person,  or  to  his  order,  or  to  the 
order  of  any  other  person,  or  to  the  bearer,  any  sum  of  money 
therein  mentioned,  shall  be  due  and  payable  as  therein  expressed, 
and  shall  have  the  same  effect,  and  be  negotiable  in  like  manner, 
as  inland  bills  of  exchange,  according  to^the  custom  of  merchants. 

Days  of  grace  are  allowed  upon  bills  and  promissory  notes,  where 
not  otherwise  expressed. 

Damages  for  non-acceptance  of  bills  of  exchange  upon  the  usual 
protest  are  as  follows,  when  drawn  or  negotiated  in  this  State  : 

If  such  bills  shall  have  been  drawn  upon  any  person  or  persons  in 
any  of  the  United  States  east  of  the  Rocky  Mountains,  fifteen  dol- 
lars upon  the  hundred  upon  the  principal  sum  specified  in  such  bill. 

If  such  bill  shall  have  been  drawn  upon  any  person  or  persons  in 
any  part  or  place  in  Europe,  or  in  any  foreign  country,  twenty  dol- 
lars upon  the  hundred  upon  the  principal  sum  specified  in  such  bill. 


CHAPTER  XXIII. 

MORTGAGES. 

A  mortgage  of  real  property,  whatever  its  terms,  shall  not  be 
deemed  a  conveyance,  so  as  to  enable  the  owner  of  the  mortgage 
to  recover  possession  of  the  real  property  without  a  foreclosure  and 
sale. 


PART  Y. 


STATE   OF   OREGON 


PREPARED    EXPBEPSLY    FOR    THIS    WORK    BY  DOLPH,    BRONOUGH, 
DOLPH  &  SIMON,  PORTLAND,  OREGON. 


CHAPTER  I. 

COURTS  AND  THEIR  JURISDICTION. 

The  judicial  power  of  the  State  is  vested  in  a  Supreme  Court, 
Circuit  Courts,  and  County  Courts,  which  are  Courts  of  record. 

Justices  of  the  peace  are  invested  with  limited  judicial  powers, 
and  Municipal  Courts  may  be  created  to  administer  the  regula- 
tions of  incorporated  towns  and  cities. 

The  Supreme  Court  consists  of  five  justices,  who  are  elected  by 
the  electors  in  each  district,  and  who  hold  their  offices  for  six  years. 

The  Supreme  Court  has  jurisdiction  only  to  revise  the  final  de- 
cisions of  the  Circuit  Courts. 

The  Circuit  Courts  are  held  at  least  twice  in  each  year,  in  each 
county  organized  for  judicial  purposes,  by  one  of  the  justices  of  the 
Supreme  Court.  All  judicial  power,  authority,  and  jurisdiction  not 
vested  exclusively  in  some  other  Court  belongs  to  the  Circuit 
Courts,  and  they  have  appellate  jurisdiction  and  supervisory  con- 


156  OREGON.  [Part  5. 

« 

trol   over  the  County  Courts,  and  all  other  inferior  Courts,  officers 
and  tribunals. 

County  Courts  have  jurisdiction,  but  not  exclusive,  of  actions  at 
law,  and  all  proceedings  therein  and  connected  therewith,  when  the 
claim  or  subject  of  the  controversy  does  not  exceed  the  value  of  five 
hundred  dollars. 

Justices'  Courts  have  jurisdiction,  but  not  exclusive,  of  the  fol- 
lowing actions : 

1.  For  the  recovery  of  money  or   damages  only,  where  the 
amount  claimed  does  not  exceed  $250. 

2.  For  the  recovery  of  specific  personal  property,  when  the  value 
of  the  property  claimed  and  the  damages  for  the  detention  do  not 
exceed  $250. 

3.  For  the  recovery  of  a  penalty  or  forfeiture,  not  exceeding  $250. 

4.  To  give  judgment  without  action  upon  the  confession  of  the 
defendant. 

The  jurisdiction  does  not,  however,  extend  to  an  action  in  which 
the  title  to  real  property  shall  come  in  question,  or  to  an  action  for 
false  imprisonment,  libel,  slander,  malicious  prosecution,  criminal 
conversation,  seduction,  or  upon  a  promise  to  marry. 


CHAPTER   II. 

TERMS  OF  COURT,  WHEN  AND  WHERE  HELD. 

The  following  are  the  times  and  places  of  holding  Courts,  both 
Federal  and  State,  in  th'e  several  counties  and  districts  of  the  State  : 

UNITED  STATES  CIRCUIT  COURT,  DISTRICT  OF  OREGON. 

Regular  terms  held  at  Portland,  on  the  second  Monday  of  April, 
August  and  November. 


Chap.  2.] 


OREGON. 


15' 


Judges,  Hon.  Stephen  J.  Field,  Associate  Justice  of  the  Supreme 
Court,  and  Hon.  Lorenzo  Sawyer,  Circuit  Judge.  Clerk,  Ralph 
Wilcox.  Marshal,  D.  J.  Malarkej. 

UNITED  STATES  DISTRICT  COURT,  DISTRICT  OF  OREGON. 

Regular  terms  held  at  Portland,  on  the  first  Monday  of  March, 
July  and  November. 

Judge,  Hon.  Matthew  P.  Deady.  Clerk,  Ralph  Wilcox.  Mar- 
shal, D.  J.  Malarkey.  tl.  S.  District  Attorney,  Rufus  Mallory. 
Register  in  Bankruptcy,  H.  H.  Northup. 

SUPREME  COURT  OF  OREGON. 

Regular  terms  held  at  Salem,  on  the  second  Monday  in  Decem- 
ber of  each  year,  and  special  terms  held  at  such  other  times  as  the 
Court  appoints. 

CIRCUIT  COURTS  OF  THE  STATE  OF  OREGON. 


TIMES   OF   HOLDING. 


Baker 

Benton  

Clack amas  . . . 

Clatsop  

Columbia 

Coos 

Cnrry 

Douglas 

Grant 

Jackson 

Josephine. .  . 

Lake 

Lane 

Linn 

Marion 

Multnomah.. 

Polk 

Umatilla 

Union 

Wasco 

Washington. 
Yamhill... 


First  Monday  of  October  and  third  Monday  of  May. 

Third  Monday  of  November  and  second  Monday  of  April. 

Fourth  Monday  of  April  and  fourth  Monday  of  September. 

Second  Tuesday  of  August  and  fourth  Tuesday  of  January. 

Second  Monday  of  At>ril. 

Fourth  Mond'ay  of  May  and  second  Monday  of  September. 

First  Monday  of  June. 

Third  Monday  of  October  and  second  Monday  of  May. 

Third  Monday  of  September  and  first  Monday  of  June. 

Second  Monday  of  February,  June  and  November. 

Fourth  Monday  of  April  and  fourth  Monday  of  October. 

Fourth  Monday  of  June  and  November. 

Third  Monday  of  April  and  first  Monday  in  November. 

Second  Monday  in  March  and  fourth  Monday  in  October. 

Fourth  Monday  of  Feb.,  second  Monday  of  June,  and  third  Monday  of  Oct. 

Second  Monday  of  February,  Jane,  and  October. 

^econd  Monday  of  May  and  first  Monday  of  December. 

Fourth  Monday  of  October  and  last  Monday  of  April. 

Third  Monday  of  October  and  first  Monday  of  May. 

Second  Monday  of  November  and  third  Monday  of  June. 

Fourth  Mcnday  of  May  and  first  Monday  of  October. 

Fourth  Monday  of  March  and  first  Monday  of  October. 


TERMS  OF  THE  COUNTY  COURTS. 
In  the  counties  of  Josephine,  Curry,  Coos,  Columbia,  Clatsop, 


158  OREGON.  [Part  5. 

Tillamook  and  Umatilla — on  the  first  Monday  of  January,  April, 
July  and  September. 

In  the  counties  of  Grant,  Baker,  Lane  and  Wasco — on  the  first 
Monday  of  January,  March,  May,  July,  September  and  Novem- 
ber. 

In  the  county  of  Lake — on  the  first  Monday  of  every  alternate 
month. 

In  the  county  of  Union — on  the  second  Monday  of  May  and  the 
first  Monday  of  January,  March,  July,  September  and  Novem- 
ber. 

In  the  counties  of  Jackson,  Douglas,  Linn,  Benton,  Polk,  Mar- 
ion, Yamhill,  Clackamas,  Washington  and  Multnomah — on  the  first 
Monday  of  each  month. 


CHAPTER   III. 

COMMENCEMENT  OF  SUITS. 

Actions  at  law  are  commenced  by  filing  a  complaint  with  the 
clerk  of  the  Court. 

At  any  time  after  the  action  is  commenced,  the  plaintiff  may 
cause  a  summons  to  be  served  on  the  defendant. 

The  summons  must  contain  the  name  of  the  Court  in  which  the 
complaint  is  filed,  the  names  of  the  parties  to  the  action,  and  the 
title  thereof ;  it  must  be  subscribed  by  the  plaintiff  or  his  attorney, 
and  directed  to  th^  defendant,  and  require  him  to  appear  and  an- 
swer the  complaint,  or  the  plaintiff  will  take  judgment  for  a  sum 
specified  therein. 

If  the  defendant  be  served  within  the  county  in  which  the  action 
is  commenced,  he  must,  appear  and  answer  the  complaint  within 
ten  days  from  the  date  of  the  service  ;  but  if  served  in  any  other 


Chaps.  4,  5.]  OREGON.  159 

county  in  the  State,  he  must  appear  and  answer  the   complaint 
within  twenty  days  from  the  date  of  service. 


CHAPTER  .IV. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  recovery  of  real  property,  or  an  estate,  or  inter- 
est therein,  or  for  injury  thereto,  and  for  the  recovery  of  any  per- 
sonal property  distrained  for  any  cause,  shall  be  commenced  and 
tried  in  the  county  in  "which  the  subject  of  the  action,  or  some  part 
thereof,  is  situated. 

In  all  other  cases  the  action  shall  be  commenced  and  tried  in 
the  county  in  which  the  defendants  or  either  of  them  reside,  or  may 
be  found  at  the  commencement  of  the  action.  If  none  of  the  par- 
ties reside  in  this  State,  the  same  may  be  tried  in  any  county 
which  the  plaintiff  may  designate  in  his  complaint. 


CHAPTER  V. 

LIMITATION  OF   ACTIONS. 

The  periods  prescribed  for  the  commencement  of  actions  are  as 
follows : 

Within  Twenty  Years  : 

Actions  for  the  recovery  of  real  property,  or  for  the  recovery  of 
the  possession  thereof. 


160  OREGON.  [Part  5. 

Within  Ten  Years: 

Actions  upon  a  judgment  or  decree  of  any  Court  of  the  United 
States,  or  of  any  State  or  Territory  within  the  United  States. 
Actions  upon  sealed  instruments. 

Within  Six  Years: 

An  action  upon  a  contract  or  liability  express  or  implied,  ex- 
cepting those  already  mentioned. 

An  action  upon  a  liability  created  by  statute,  other  than  a  penalty 
or  forfeiture. 

An  action  for  waste  or  trespass  upon  real  property. 

An  action  for  taking,  detaining  or  injuring  personal  property, 
including  an  action  for  the  specific  recovery  thereof. 

*  Within  Three  Years  : 

An  action  against  a  sheriff,  constable  or  coroner,  upon  a  liability 
incurred  by  the  doing  of  an  act  in  his  official  capacity,  or  by  the 
omission  of  an  official  duty ;  but  this  does  not  apply  to  an  action  for 
an  escape. 

An  action  upon  a  statute  for  a  penalty  or  forfeiture. 

Within  Two  Years: 

An  action  for  libel,  slander,  assault,  battery,  or  false  imprison- 
ment ;  for  criminal  conversation,  or  for  an  injury  to  the  person  or 
rights  of  another  not  arising  on  contract. 

An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  State. 

Within  One  Year  : 

An  action  against  a  sheriff  or  other  officer  for  the  escape  of  a 
prisoner  arrested  or  imprisoned  on  civil  process. 

An  action  for  any  cause  not  hereinbefore  provided  for  shall  be 
commenced  within  ten  years  after  the  cause  of  action  accrued. 


Chaps.  6,  7.]  OREGON.  161 


CHAPTER  VI. 

ATTACHMENTS. 

In  an  action  for  the  recovery,  of  money  or  damages,  the  plaintiff, 
at  any  time  after  the  commencement  of  the  action,  and  before  judg- 
ment, may  have  the  property  of  the  defendant  attached,  by  filing 
with  the  clerk  of  the  Court  an  undertaking  with  one  or  more  sure- 
ties equal  to  the  amount  for  which  the  plaintiff  demands  judgment, 
and  not  less  than  $100  ;  and  the  plaintiff,  or  some  one  in  his  behalf, 
making  and  filing  an  affidavit  that  the  defendant  is  either  a  foreign 
corporation  or  a  non-resident  of  the  State,  or  has  departed  there- 
from with  intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the 
service  of  a  summons,  or  keeps  himself  concealed  therein  with  like 
intent,  or  has  removed  or  is  about  to  remove  his  property  from  the 
State  with  intent  to  delay  or  defraud  his  creditors,  or  has  assigned, 
secreted,  or  disposed  of  any  of  his  property,  or  is  about  to  do  so, 
with  intent  to  delay  or  defraud  his  creditors,  or  that  the  debt  was 
fraudulently  contracted. 


CHAPTER  VII. 

ARRESTS  IN   CIVIL  ACTIONS. 

The  defendant  may  be  arrested  in  the  following  cases  : 
In  an  action  for  the  recovery  of  money  or  damages  on  a  cause 
of  action  arising  out  of  contract,  when  the  defendant  is  not  a  resi- 
dent of  the  State,  or  is  about  to  remove  therefrom ;  or  when  the 
action  is  for  an  injury  to  person  or  character,  or  for  injuring  or 
11 


162  OREGON.  [Part  5. 

wrongfully  taking,  detaining,  or  converting  property.  In  an  action 
for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or  for  money  re- 
ceived, or  property  embezzled  or  fraudulently  misapplied  or  con- 
verted to  His  own  use  by  a  public  officer,  or  an  attorney,  officer,  or 
agent  of  a  corporation,  factor,  agent  or  broker,  or  other  person  in 
a  fiduciary  capacity.  In  an  action  to  recover  the  possession  of  any 
personal  property  unjustly  detained,  when  the  property  or  any  por- 
tion thereof  has  been  concealed,  removed,  or  disposed  of. 

When  the  defendant  has  been  guilty  of  a  fraud  in  contracting 
the  debt  or  incurring  the  obligation  for  which  the  action  is  brought. 

When  the  defendant  has  removed  or  disposed  of  his  property,  or 
is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

No  female  can  be  arrested  in  any  action,  except  for  an  injury  to 
person,  character,  or  property. 


CHAPTER  VIII. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment,  when  entered,  becomes  a  lien  upon  the  real  estate 
owned  by  the  defendant  in  the  county  at  the  time  of  the  entry, 
and  such  as  he  may  subsequently  acquire.  The  lien  continues  for 
-ten  years. 


Chap.  9.]  OREGON.  163 


CHAPTER  IX. 

EXECUTIONS,   EXEMPTIONS,    SALE,    AND    REDEMP- 
TION. 

The  party  in  whose  favor  a  judgment  is  given  which  requires 
the  payment  of  money,  the  delivery  of  real  or  personal  property, 
or  either  of  them,  may,  at  any  time  after  the  entry  thereof,  have  a 
writ  of  execution  issued  for  its  enforcement. 

There  are  three  kinds  of  execution :  one  against  the  property  of 
the  judgment  debtor,  another  against  his  person,  and  the  third  for 
the  delivery  of  real  or  personal  property. 

In  the  Circuit  and  County  Courts  executions  are  returnable  in 
sixty  days,  and  in  Justices'  Courts  in  thirty  days. 

In  the  Circuit  and  County  Courts  there  is  no  stay  of  execution, 
except  pending  an  appeal ;  in  Justices'  Courts  execution  may  be 
stayed  for  thirty  days  upon  filing  bond. 

The  following  personal  property  is  exempt  from  sale  under  an 
execution  : 

Books,  pictures,  and  musical  instruments,  to  the  value  of  $75  ; 
wearing  apparel  to  the  value  of  Si 00,  and  if  a  householder,  to  the 
value  of  $50  for  each  member  of  the  family  ;  tools,  implements,  ap- 
paratus, team,  vehicle,  harness,  or  library,  when  necessary  in  the 
occupation  or  profession  of  a  judgment  debtor,  to  the  amount  of 
$400  ;  if  the  judgment  debtor  be  a  householder,  ten  sheep  with 
one  year's  fleece,  two  cows,  five  swine,  household  goods,  furniture, 
and  utensils,  to  the  value  of  $300.  No  article  of  property  is  ex- 
empt from  execution  issued  upon  a  judgment  for  the  purchase 
price. 

Upon  a*  sale  of  real  property,  when  the  estate  is  less  than  a 
leasehold  of  two  years'  unexpired  term,  the  sale  is  absolute.  In  all 
other  cases  such  property  is  subject  to  redemption. 

The  judgment  debtor,  or  his  successor  in  interest,  may  redeem 
such  property  within  sixty  days  from  the  date  of  the  order  con- 
firming the  sale,  by  paying  the  amount  of  the  purchase  money, 


164  OREGON.  [Part  5. 

with  interest  at  the  rate  of  two  per  cent,  per  month  from  the  time 
of  sale,  together  with  the  amount  of  taxes  the  purchaser  may  have 
paid  thereon. 

A  creditor  having  a  lien  by  judgment,  decree  or  mortgage,  on 
any  portion  of  the  property  subsequent  in  time  to  that  on  which  the 
property  was  sold,  may  also  redeem. 


CHAPTER  X. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 

After  the  issuing  of  an  execution  against  property,  and  upon 
proof  by  the  affidavit  of  the  plaintiff,  in  the  writ  or  otherwise,  to  the 
satisfaction  of  the  Court  or  judge  thereof,  that  the  judgment  debtor 
has  property  liable  to  execution  which  he  refuses  to  apply  towards 
the  satisfaction  of  the  judgment,  such  Court  or  judge  may  by  an 
order  require  the  judgment  debtor  to  appear  and  answer  under 
oath  concerning  the  same.  If  it  appear  from  such  examination 
that  the  judgment  debtor  has  property  liable  to  execution,  the 
Court  or  judge  shall  make  an  order  requiring  the  judgment  debtor 
to  apply  the  same  in  satisfaction  of  the  judgment.  Disobedience  to 
any  such  order  may  be  punished  as  for  a  contempt. 


CHAPTER   XI. 

SECURITY  FOR  COSTS. 

Security  for  costs  can  only  be  required  in  Justices'  Courts.  If 
the  plaintiff  is  a  non-resident  of  the  county,  the  justice  may  require 
him  to  give  an  undertaking  with  one  or  more  sureties  for  the  costs 


Chap.  12.]  OREGON.  165 

and  disbursements  of  the  action  before  issuing  the  summons,  and  if 
at  any  time  before  the  commencement  of  the  trial  the  defendant 
apply  therefor,  the  justice  must  require  such  plaintiff  to  give  such 
undertaking.  Upon  application  of  defendant,  and  in  the  discretion 
of  the  justice,  the  plaintiff,  if  a  resident  of  the  county,  may  be  re- 
quired to  give  an  undertaking  for  costs.  The  undertaking  may  be 
in  the  following  form  :  "  I,  A*  B,  or  We,  A  B  and  C  D,  undertake 
to  pay  E  F,  the  defendant  in  this  action,  all  costs  and  disburse- 
ments that  may  be  adjudged  to  him  in  this  action." 

The  sureties  must  possess  the  qualifications  of  bail  upon  arrest, 
and  if  required  by  the  defendant,  must  justify  in  a  sum  not  less 
than  $50. 


CHAPTER  XII 

APPEALS. 

Any  party  to  a  judgment  or  decree,  other  than  a  decree  or 
judgment  for  want  of  an  answer,  or  by  confession,  may  appeal 
therefrom.  •  • 

An  appeal  to  the  Supreme  Court  shall  be  taken  by  serving  and 
filing  a  notice  of  appeal  within  six  months  from  the  entry  of  the 
judgment  or  decree  appealed  from,  or  to  the  Circuit  Court  within 
thirty  days  after  such  entry,  and  not  otherwise. 

Appeals  from  the  Circuit  Courts  are  taken  to  the  Supreme 
Court,  and  from  County  Courts  and  Justices'  Courts  to  the  Circuit 
Court  of  the  county. 

Upon  an  appeal  from  the  Circuit  or  County  Court,  the  appellant 
must  file  an  undertaking,  with  one  or  more  sureties,  to  the  effect 
that  the  appellant  will  pay  all  damages,  costs  and  disbursements 
which  may  be  awarded  against  him  on  the  appeal ;  and  if  the 
iudgment  or  decree  appealed  from  be  for  the  recovery  of  money  or 


166  OREGON.  „  [Part  5. 

personal  property,  or  the  value  thereof,  to  obtain  a  stay  of  proceed- 
ings the  undertaking  must  further  provide,  that  if  the  judgment  or 
decree  appealed  from  be  affirmed,  the  appellant  will  satisfy  it  so 
far  as  affirmed. 

Upon  an  appeal  from  Justice's  Court,  the  undertaking  is  to  the 
effect  that  the  appellant  will  pay  all  costs  and  disbursements  that 
may  be  awarded  against  him  on  the  appeal,  and  that  he  will  satisfy 
any  judgment  that  may  be  given  against  him  in  the  appellate  court 
on  the  appeal. 


CHAPTER  XIII. 

ESTATES  OF  DECEASED  ^PERSONS. 

Every  executor  or  administrator  must,  immediately  after  his  ap- 
pointment, publish  a  notice  thereof  in  some  newspaper  published  in 
the  county,  for  four  successive  weeks.  Such  notice  must  require 
all  persons  having  claims  against  the  estate  to  present  them  to  the 
administrator  or  executor,  within  six  months  from  the  date  of  such 
notice,.with  the  proper  vouchers.  A  claim  not  presented  within 
six  months  is  not  barred,  but  it  cannot  be  paid  until  the  claims  pre- 
sented within  that  period  have  been  satisfied.  A  claim  not  due 
or  contingent  must,  nevertheless,  be  presented  as  any  other  cLaim. 
Until  administration  has  been  completed,  a  claim  against  the  estate 
may  be  presented,  allowed  and  paid  out  of  any  assets  not  other- 
wise appropriated  or  liable. 

Every  claim  must  be  verified  by  the  affidavit  of  the  claimant,  or 
some  one  on  his  behalf,  who  has  personal  knowledge  of  the  facts, 
to  the  effect  that  the  amount  claimed  is  justly  due,  that  no  pay- 
ments have  been  made  thereon  except  as  stated,  and  that  there  is 
no  just  counter-claim  to  the  same. 

There  is  no  specified  time  in  which  estates  are  required  to  be 
settled. 


Chap.  14.]  OREGON.  167 

CHAPTER   XIV. 

DESCENT  OF  EEAL  PROPERTY. 

When  any  person  dies,  seized  of  any  real  property,  or  any  right 
thereto,  or  any  interest  therein,  not  having  lawfully  devised  the 
same,  such  real  property  descends,  subject  to  his  debts,  as  follows  : 

1.  In  equal  shares  to  his  children  and  to  the  issue  of  any  de- 
ceased child  by  right  of  representation  ;  and  if  there  be  no  child  of 
the  intestate  living  at  the  time  of  his  death,  such  real  property  de- 
scends to  all  his  other  lineal  descendants  ;  and  if  all  such  descend- 
ants are  in  the  same  degree  of  kindred  to  the  intestate,  they  take 
such  real  property  equally  ;  or  otherwise,  they  take  according  to  the 
right  of  representation. 

2.  If  the  intestate  leaves  no  lineal  descendants,  such  property  de- 
scends to  his  wife ;  and  if  he  leaves  no  wife,  it  descends  to  his 
father. 

3.  If-  the  intestate  leaves  no  lineal  descendants-,  wife  nor  father, 
such  real  property  descends  in  equal  shares  to  his  brothers  and 
sisters,  and  to  the  issue  of  any  decea'sed  brother  or  sister  by  right 
of  representation ;  but. if  the  intestate  leaves  a  mother  also,  she 
takes  an  equal  share  with  such  brothers  and  sisters. 

4.  If  the  intestate  leaves  no  lineal  descendants,  wife,  father, 
brother  nor  sister  living,  at  his  death,  such  real  property  descends 
to  his  mother,  to  the  exclusion  of  the  issue  of  his  deceased  brothers 
or  sisters. 

5.  If  the  intestate  leaves  no  lineal   descendants,  wife,  father, 
mother,  brother  nor  sister,  such  real  property  descends  to  his  next 
of  kin  in  equal  degree,  excepting  that  when  there  are  two  or  more 
collateral  kindred  in  equal  degree,  but  claiming  through  different 
ancestors,  those  who  bclairn  through  the  nearest  ancestor  are  pre- 
ferred to  those  claiming  through  a  more  remote  ancestor. 

6.  If  the  intestate  leaves  one  or  more  children,  and  the  issue  of 
one  or  more  deceased  children,  and  any  of  such  surviving  children 
shall  die  under  age,  without  having  been  married,  all  such  real 


168  OREGON.  [Part  5. 

property  that  came  to  such  deceased  child  by  inheritance  from  such 
intestate,  descends  in  equal  shares  to  the  other  children  of  the  in- 
testate, and  to  the  issue  of  any  other  children  of  such  intestate 
who  shall  have  died,  by  right  of  representation ;  but  if  all  the 
other  children  of  such  intestate  are  also  dead,  and  any  of  them  shall 
have  left  issue,  such  real  property  so  inherited  by  such  deceased 
child  descends  to  all  the  issue  of  such  other  children  of  the  intes- 
tate in  equal  shares,  if  they  are  in  the  same  degree  of  kindred  to 
such  deceased  child  ;  otherwise,  they  take  by  right  of  representation. 
7.  If  the  intestate  leaves  no  lineal  descendants  or  kindred,  such 
real  property  escheats  to  the  State  of  Oregon. 


CHAPTER   XV. 

DESCENT  OF  PERSONAL  PROPERTY. 

When  any  person  dies  possessed  of  any  personal  property,  not 
having  lawfully  bequeathed  the  same,  such  personal  property  is 
applied  and  distributed  as  follows  : 

1.  If  the  intestate  leaves  a  widow,  she  is  allowed  all  her  articles 
of  apparel  and  ornaments,  according  to  the  degree  and  estate  of 
the  intestate,  and  such  property  and  provisions  for  the  use  and 
support  of  herself  and  minor   children  as  shall  be  allowed  and 
ordered. 

2.  The  personal  property  of  the  intestate  remaining'  after  such 
allowance  is  applied  to  the  payment  of  the  debts  of  the  intestate, 
and  the  charges  and  expenses  of  administration. 

3.  The  residue,  if  any,  of  the  personal  property  is  distributed 
among  the  persons  who  would  be   entitled  to  the  real  property, 
except  as  otherwise  provided. 

4.  If  the  intestate  leaves  a  husband,  such  husband  is  entitled  to 
the  whole  of  the  personal  property. 


Chaps.  16, 17.]  OREGON.  169 

5.  If  the  intestate  leaves  a  widow  and  issue,  such  widow  is  en- 
titled to  receive  one-half  of  such  personal  property  ;  but  if  there 
be  a  widow  and  no  issue,  she  is  entitled  to  the  whole  of  such  .per- 
sonal property. 

6.  If  there  be  no  husband,  widow  or  kindred,  the  whole  escheats 
to  the  State. 


CHAPTER   XVI. 

HOMESTEADS   AND  DOWER. 

HOMESTEADS. 
There  is  no  homestead  law  in  this  State. 

DOWER. 

The  widow  of  every  deceased  person  is  entitled  to  dower,  or  the 
use  during  her  natural  life  of  one-third  part  of  all  the  lands  of 
which  her  husband  was  seized  of  an  estate  of  inheritance  at  any 
time  during  the  marriage,  unless  she  is  lawfutfy  barred  thereof. 

I 


CHAPTER  XVII. 

DEPOSITIONS. 

The  deposition  of  a  witness  out  of  the  State  may  be  taken  upon 
commission  issued  from  the  Court,  or  without  commission  before  a 
commissioner  appointed  by  the  governor  of  this  State  to  take  dep- 


170  OREGON.  [Part  5. 

ositions  in  other  States  or  countries.  The  commission  may  be 
issued  by  the  clerk  of  the  Court,  or  the  justice  in  a  cause  pending 
in  Justice's  Court,  on  the  application  of  either  party  upon  five  days' 
previous  notice  to  the  other.  It  is  issued  to  a  person  agreed  upon 
by  the  parties,  or  if  they  do  not  agree,  to  a  judge,  justice  of  -the 
peace,  notary  public,  or  clerk  of  a  Court  selected  by  the  officer 
issuing  it.  Such  interrogatories,  direct  and  cross,  as  the  parties 
may  prepare  may  be  annexed  to  the  commission. 

The  following  form  may  be  used  : 

In  the Court  of  the  State  of  Oregon   for County. 

A  B,  Plaintiff, 
vs. 

C  D,  Defendant. 


,1 


Deposition  of  E  F,  a  witness  on  behalf  of  the 

in  the  above  entitled  action,  taken  before  me,  a  commissioner 
named  in  the  attached  commission,  and  a  (notary  public)  in  and  for 

county,  State  of on  the 

day  of 187 at  my  office  at  the  city  of 

in  said  -county  and  State,  who  being  first  duly  sworn  in  an- 
swer to  the  direct  and  cross  interrogatories  attached  to  said  com- 
mission in  their  order,  testified  as  follows : 

1.   To  the  first  direct  interrogatory  he  answers,  etc. 

When  completed,  the  deposition  should  be  read  to  the  witness, 
and  then  subscribed  by  him. 

The  following  form  of  certificate  should  be  added  to  the  deposi- 
tion : 
STATE  OF 


,  ss. 
COUNTY  OF- 

I, a  (notary  public)  in  and  for  said  county  and 

State,  and  commissioner,  before  whom  the  foregoing  deposition  was 
taken,  do  hereby  certify  that  the  deposition  of  said  witness,  E  F, 

was  taken  before  me,  at  my  office  in  the  city  of . in 

said  county  and  State,  on  the day  of 18 

between   the  hours  of o'clock  A.M.,  and o'clock — M. 

of  said  day,  and  the  same  was  endorsed  by  me ;  that  before  pro- 
ceeding to  the  examination,  the  witness  was  duly  sworn  to  tell  the 
truth,  the  whole  truth,  and  nothing  but  the  truth  ;  that  when  com- 


Chaps.  18,  19.]  OREGON.  171 

pleted,  the  deposition  was  carefully  read  over  by  me  to  said  wit- 
ness, and  then  by  him  subscribed. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  official 
seal,  this day  of 187 

[SEAL.] 

Notary  Public,    etc. 
and  "Commissioner. 

Endorse  upon  the  envelope  the  title  of  the  Court  and  cause,  and 

the  words  "  deposition  of "  and  forward  by  mail  to  the 

officer  issuing  the  commission. 


CHAPTER  XVIII. 

JUDICIAL  RECORD. 

The  judicial  record  of  a  sister  State  is  proved  by  'the  production 
of  a  copy  thereof,  certified  by  the  clerk  or  other  person  having 
the  legal  custody  of  the  record,  with  the  seal  of  the  Court  affixed 
thereto,  if  there  be  a  seal,  together  with  the  certificate  of  the  chief 
judge,  or  presiding  magistrate,  that  the  certificate  is  in  due  form, 
and  made  by  the  clerk  or  other  person  having  the  legal  custody  of 
the  original. 


CHAPTER  XIX. 

ACKNOWLEDGMENTS. 

Deeds  may  be  acknowledged  within  this  State  before  any  judge 
of  the  Supreme  Court,  county  judge,  justice  of  the  peace,  notary 
public,  or  clerk  of  a  Court.  No  acknowledgment  of  any  convey- 


172  OREGON.  [Part  5. 

ance  having  been  executed  shall  be  taken  by  any  officer,  unless  he 
shall  know  or  have  satisfactory  evidence  that  the  person  making 
such  acknowledgment  is  the  individual  described  in  and  who  exe- 
cuted such  conveyance. 

When  a  married  woman,  residing  in  this  State,  shall  join  with 
her  husband  in  a  deed  of  conveyance  of  real  estate  situated  within 
this  State,  the  acknowledgment  of  the  wife  shall  be  taken  sep- 
arately and  apart  from  her  husband,  and  she  'shall  acknowledge 
that  she  executed  such  deed  freely  and  without  fear  or  compulsion 
from  any  one.  If  any  deed  shall  be  executed  in  any  other  State, 
Territory  or  District  of  the  United  States,  such  deed  may  be  exe- 
cuted and  acknowledged  according  to  the  laws  of  guch  State,  Ter- 
ritory or  District,  or  before  any  commissioner  appointed  by  the 
governor  of  this  State  for  such  purpose  ;  and  unless  the  acknowledg- 
ment be  taken  before  such  commissioner,  it  must  be  certified  by 
the  clerk  or  other  proper  certifying  officer  of  a  Court  of  record  of 
the  county  or  district  within  which  such  acknowledgment  was  taken, 
under  the  seal  of  his  office,  that  the  person  whose  name  is  sub- 
scribed to  the  certificate  of  acknowledgment  was,  at  the  date  there- 
of, such  officer  as  he  is  therein  represented  to  be,  and  that  he  be- 
lieves the  signature  of  such  person  subscribed  thereto  to  be  genuine, 
and  that  the  deed  is  executed  and  acknowledged  according  to  the 
laws  of  such  State,  Territory  or  District. 


CHAPTER  XX. 

LIMITED  PARTNERSHIPS. 

Limited  partnerships  for  the  transaction  of  .mercantile,  mechan- 
ical and  manufacturing  business  may  be  formed  in  this  State. 
The  persons  forming  such  partnership  make  and  severally  subscribe 


Chap.  21.]  OREGON.  173 

and  acknowledge  a  certificate  in  duplicate,  which  contains  the  name 
assumed  by  the  partnership,  the  names  and  respective  places  of 
residence  of  all  the  general  and  special  partners,  the  amount  of 
capital  which  each  special  partner  contributes,  the  general  nature 
of  the  business  to  be  transacted,  and  the  time  when  the  partnership 
is  to  commence  and  terminate ;  one  copy  of  such  certificate  is  filed 
with  the  clerk  of  the  county  in  which  the  principal  place  of  busi- 
ness of  the  partnership  is  to  be.  A  copy  of  the  same  is  required 
to  be  published  for  four  weeks  in  some  weekly  newspaper  published 
in  the  county.  The  business  must  be  conducted  under  a  name  in 
which  the  names  of  the  general  partners  only  shall  be  inserted, 
without  the  addition  of  the  word  company,  or  any  other  general 
term. 

Special  partners  are  not  personally  liable  for  any  debts  of  the 
partnership. 

During  the  continuance  of  any  such  partnership  no  part  of  the 
capital  stock  can  be  withdrawn,  nor  any  division  of  interests  or 
profits  made,  so  as  to  reduce  such  capital  stock  below  the  sum 
stated  in  the  certificate. 


CHAPTER  XXI. 

MARRIED  WOMEN. 

The  constitution  of  the  State  provides  that  the  property  and 
pecuniary  rights  of  every  married  woman  at  the  time  of  marriage, 
or  afterwards  acquired  by  gift,  devise  or  inheritance,  shall  not  be 
subject  to  the  debts  or  contracts  of  the  husband,  and  laws  shall  be 
passed  providing  for  the  registration  of  personal  property :  which 
has  been  done.  The  property,  both  real  and  personal,  acquired  by 
any  married  woman  during  coverture,  is  free  from  and  not  liable 
for  the  debts,  liabilities  or  contracts  of  her  husband. 


174  OREGON.  [Part  5. 

CHAPTER   XXII. 

CORPORATIONS. 

• 

Corporations  are  only  formed  under  general  laws,  and  cannot  be 
created  by  special  laws. 

The  stockholders  of  all  corporations  and  joint  stock  companies 
are  liable  for  the  indebtedness  of  such  corporations  to  the  amount 
of  their  stock  subscribed  and  unpaid,  and  no  more. 

No  bank,  banking  company  or  moneyed  institution  can  be  creat- 
ed under  the  laws  of  this  State  ;  nor  can  any  bank,  company  or 
institution  exist  in  the  State  with  the  privilege  of  making,  issuing, 
or  putting  in  circulation  any  bill,  check,  certificate,  promissory 
note  or  other  paper,  or  the  paper  of  any  bank,  company  or  person, 
to  circulate  as  money. 


CHAPTER   XXIII. 

CHATTEL  MORTGAGES. 

A 

Chattel  mortgages  are  valid  against  third  parties  when  the  prop- 
erty is  retained  in  the  possession  of  the  mortgagor,  provided  the 
mortgage  or  a  copy  thereof  is  filed  in  the  office  of  the  county  clerk. 
Such  mortgage,  however,  ceases  to  be  valid  as  against  creditors 
and  subsequent  purchasers,  or  mortgagors  in  good  faith,  after  the 
expiration  of  one  year  from  the  filing  of  the  same,  unless  within 
thirty  days  preceding  the  expiration  of  the  year  an  affidavit,  setting 
forth  the  interest  which  the  mortgagee  has  in  the  property  by 


Chap.  24.]  OREGON.  175 

virtue  of  sucli  mortgage,  is  made  and  annexed  to  the  instrument  or 
copy  on  file.  The  effect  of  such  affidavit  does  not  continue  beyond 
one  year,  when  a  similar  affidavit  must  be  made. 


CHAPTER   XXIV. 

INTEREST   AND   USURY. 

Ten  per  cent,  per  annum  is  the  legal  rate  of  interest ;  but  on  con- 
tracts, interest  at  the  rate  of  one  per  cent,  per  month  may  be 
charged  by  express  agreement  of  the  parties. 

Usury  entails  the  forfeiture  of  the  principal  sum,  without  interest, 
to  the  school  fund  of  the  county  in  which  the  suit  is  brought. 


PAET  VI. 


UTAH  TERRITORY 


PEEPAEED    EXPEESSLY    FOE  THIS   WOEK  BY  LEWIS 
SALT  LAKE  CITY. 


CHAPTER  I. 

THE  COURTS  AND  THEIR  JURISDICTION. 

The  Supreme  Court  of  the  Territory  has  general  appellate  juris- 
diction only. 

There  are  three  United  States  District  Courts  in  the  Territory, 
with  unlimited  jurisdiction  in  all  chancery  and  law  actions. 

THE  PROBATE  COURTS, 

One  in  each  county :  Their  jurisdiction  is  limited  to  strictly  pro- 
bate business,  except  that  they  may  try  divorce  cases  where  both 
parties  agree  upon  that  forum  ;  removable,  however,  at  the  pleasure 
of  either  party,  to  the  District  Court.  The  judges  have  the  right 
to  enter  town  sites,  and  preside  over  the  board  of  selectmen ;  in 
other  words,  the  County  Court. 

12 


178  UTAH.  [Part  6. 


JUSTICES'  COURTS 

Have  jurisdiction  in  all  actions  where  the  amount  involved  is  less 
than  three  hundred  dollars,  except  in  cases  involving  titles  to  real 
estate. 


CHAPTER   II. 

THE  TERMS  OF  COURTS  AND  PLACES  OF  HOLDING 

SAME. 

The  Supreme  Court  sits  the  first  Monday  of  January,  and  the 
second  Monday  of  June,  of  each  year,  at  Salt  Lake  City. 

The  District  Courts  sit  at  Salt  Lake  City,  third  district ;  Provo, 
second  district ;  Beaver  City,  first  district.  The  times  are  fixed 
by  the  Governor  at  pleasure,  and  often  change  to  suit  convenience 
or  absence  of  the  judges,  and  now  the  assignment  is  only  tem- 
porary. 

The  Probate  Courts  and  Justices'  Courts  are  always  open  for 
the  transaction  of  business  ;  the  former  at  their  respective  county 
court  houses,  and  the  latter  in  their  respective  precincts. 


CHAPTER  III. 

COMMENCEMENTS  OF  SUITS  AND   TIME  ALLOWED 
DEFENDANTS  TO  PLEAD. 

Suits  may  be  commenced  at  any  time.  Ten  days  after  service 
are  allowed  the  defendants  to  plead,  answer,  demur,  or  file  motions 
in  cases  in  the  District  Courts  and  Supreme  Court. 


Chaps.  4,  5.]  UTAH.  179 

In  Justices'  Courts,  defendants  may  be  required  to  answer  within 
two  days  after  service,  and  not  longer  than  ten  days  after  service. 


CHAPTER  IV. 

LIMITATIONS  OF  ACTIONS. 

Actions  for  the  recovery  of  real  estate  can  only  be  brought  with- 
in seven  years  after  the  plaintiff's  having  been  lawfully  seized  and 
possessed  of  the  premises  by  himself,  grantor,  ancestor,  or  prede- 
cessor. 

Actions  for  the  recovery  of  money  on  notes,  bonds,  or  judgments 
recovered  in  a  foreign  State  must  be  brought  within  four  years 
after  the  cause  of  action  accrued;  and  on  accounts,  within  two 
years. 


CHAPTER  V. 

ATTACHMENTS 

Can  only  issue  upon  the  filing  of  an  affidavit  on  behalf  of  the 
plaintiff,  showing  the  existence  of  a  debt  upon  contract,  specifying 
the  nature  and  amount  thereof,  as  near  as  may  be,  over  and  above 
all  legal  set-offs  or  counter-claims ;  that  the  same  has  not  been  se- 
cured by  any  mortgage,  lien,  or  pledge  upon  real  or  personal 
estate  within  the  Territory,  or  if  so  secured,  that  such  security  has 


180  UTAH.  [Part  6. 

been  rendered  nugatory  by  the  act  of  the  defendant ;  that  the 
defendant  is  not  residing  in  this  Territory,  or  that  the  defendant  has 
departed  the  Territory  or  county  where  the  action  is  brought,  or 
that  the  defendant  stands  in  defiance  of  an  officer,  or  conceals  him- 
self so  that  process  cannot  be  served  upon  him,  or  that  he  is  dis- 
posing of  his  property  with  the  intent  to  defraud  his  creditors ;  that 
the  debt  is  an  actual  bona  fide  existing  demand  due  and  owing  from 
the  defendant  to  the  plaintiff,  and  that  the  action  is  not  sought  or 
prosecuted  to  hinder,  delay,  or  defraud  any  creditor  of  the  de- 
fendant. 

There  must  also  be  executed  and  filed  an  undertaking,  with  two 
sufficient  sureties,  in  a  sum  not  less  than  $200,  nor  exceeding  the 
amount  claimed  by  the  plaintiff,  conditioned,  that  if  the  defendant 
recover  judgment  in  the  action,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  not  exceeding  the  amount  speci- 
fied in  the  undertaking. 


CHAPTER  VI. 

ARRESTS  IN  CIVIL  ACTIONS 

Are  issued  upon  filing  an  undertaking  and  affidavit,  the  same  in 
effect  as  those  required  in  attachment  cases,  except  that  in  addi- 
tion to  the  liability  of  sureties  in  attachment  cases  for  costs,  in 
cases  of  arrest  they  are  liable  for  any  damage  wbichxthe  defendant 
may  sustain  by  reason  of  the  arrest,  not  exceeding  the  sum 
specified  in  the  undertaking,  and  the  undertaking  must  be  in  a 
sum  not  less  than  $500.  In  either  case,  the  sureties  must  an- 
nex an  affidavit  to  the  undertaking  ;  that  he  is  a  resident  and 
householder,  or  freeholder  within  the  Territory,  and  worth  double 
the  sum  specified  in  the  undertaking,  over  and  above  all  his  debts 
and  liabilities,  exclusive  of  property  exempt  from  execution. 


Chap.  7.]  UTAH.  181 

The  affidavit  in  cases  of  arrest  differs  from  attachment  affidavits 
only  in  this,  that  the  arrest  may  be  made  in  any  action  for  a  fine, 
or  for  money  or  property  embezzled,  or  fraudulently  misapplied,  or 
converted  to  his  own  use  by  a  public  officer,  or  an  officer  of  a  cor- 
poration, or  an  attorney,  factor,  or  broker,  agent  or  clerk,  in  the 
course  of  his  employment,  or  by  any  person  in  a  fiduciary  capacity 
for  misconduct  or  neglect  in  office,  or  in  a  professional  employment, 
or  for  a  willful  violation  of  duty  or  in  an  action  to  recover  the  posses- 
sion of  personal  property,  unjustly  detained ;  when  the  property, 
or  any  part  thereof,  has  been  concealed,  removed  or  disposed  of,  so 
that  it  cannot  be  found  or  taken  by  the  Territorial  marshal,  his 
deputy,  or  the  sheriff  or  his  deputy ;  or  where  the  defendant  has 
been  guilty  of  fraud  in  contracting  the  debt  or  incurring  the  obliga- 
tion for  which  the  action  is  brought,  or  is  concealing  or  disposing 
of  the  property  for  the  taking,  detention  or  conversion  of  which 
the  action  is  brought ;  or  when  the  defendant  has  removed  or  dis- 
posed of  his  property  or  is  about  to  do  so,  with  the  intent  to  de- 
fraud his  creditors. 


CHAPTER  VII. 

JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment  is  collectable  by  execution,  which  may  be  issued 
any  time  after  judgment,  within  three  years  after  its  rendition, 
and  is  alien  upon  the  real  estate  of  the  defendant  within  the  coun- 
ty where  it  is  rendered,  from  its  rendition ;  executions  may  be 
issued  to  other  counties,  but  the  judgment  constitutes  a  lien  there, 
only  from  the  time  of  filing  a  transcript  of  the  judgment  for  record 
in  the  office  of  the  county  recorder  of  the  county  to  which  it  is  sent. 


182  UTAH.  [Part  6. 


CHAPTER    VIII. 

EXECUTIONS,  EXEMPTIONS,  SALES,  AND    REDEMP- 
TION. 

Property,  real  or  personal,  may  be  sold  on  twenty  days'  notice, 
under  execution,  but  the  execution  may  issue  returnable  in  not  less- 
then  ten  days  nor  more  than  ninety  days,  and  the  execution  may 
require  the  officer  to  satisfy  the  judgment  in  the  particular  kind  of 
money  ordered  in  the  judgment. 

The  following  property  is  exempt  from  execution  : 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  one  hundred 
dollars  belonging  to  the  judgment  debtor. 

2.  Necessary  household,  table  and  kitchen  furniture  belonging 
to  the  judgment  debtor,  including  stoves,  not  to  exceed  one  stove 
for  every  five  persons  of  the  family.     Stove  pipe  and  stove  furni- 
ture, wearing  apparel,  one  bedstead,  one  bed,  and  the  necessary 
bedding  for  every  two  persons  in  the  family,  and  provisions  and 
fuel  for  the  family  sufficient  for  sixty  days. 

3.  The   farming  utensils   or   implements   of  husbandry  of  the 
judgment  debtor.    Also,  two  oxen  or  two  horses,  or  two  mules  and 
their  harness  ;  one  cow  and  calf  for  every  five  persons  in  the  family  ; 
One  cart  or  wagon,  and  food  for  such  oxen,  horses,  cows,  or  mules,  for 
sixty  days  ;  also  all  seed  grain,  or  vegetables,  actually  provided,  re- 
served, or  on  hand,  for  the  purpose  of  planting  or  sowing  at  any 
time  within  the  ensuing  six  months,  not  exceeding  in  value  one 
hundred  dollars. 

4.  The  tools,   tool   chest,  and  implements  of  a    mechanic    or 
artisan,  necessary  to  carry  on  his  trade.     The  instruments  and 
chests  of  a  surgeon,  physician,  surveyor,  or  dentist,  necessary  to 
the  exercise  of  their  professions,   with  their  scientific  and  profes- 
sional libraries,  and  the  law  library  of  an  attorney  or  counsellor, 
and  the  libraries  of  ministers  of  the  gospel. 

5.  The  tent  or  cabin  of  a  miner,  including  a  table,  camp  stools, 
a  bed  and  bedding,  and  necessary  tools  used  in  mining,  not  exceed- 


Chap.  8.]  UTAH.  183 

ing  the  value  of  four  hundred  dollars,  with  provisions  necessary  to 
his  support  for  thirty  days. 

6.  Two  oxen  or  two  horses  or  two  mules,  and  their  harness, 
and  one  cart  and  wagon,  by  the  use  of  which  a  cartman,  teamster, 
or  other  laborer  habitually  earns  his  living,  and  food  for  such  oxen, 
horses,  or  mules  for  sixty  days  ;  and  a  horse,  harness,  and  vehicle 
used  by  a  physician,  surgeon,  or  minister  of  the  gospel,  in  making 
his  professional  visits. 

7.  One  sewing  machine  not  to  exceed  in  value  $100.00,  in 
actual  use  by  the  debtor  or  his  family.     If  the  debtor  be  head  of  a 
family,  then  there  shall  be  a  further  exemption  of  five  head  of  sheep 
and  the  wool  therefrom  for  every  person  in  his  family,  two  hogs 
and  three  pigs  under  three  months  old,  and  the  necessary  food  for 
all  such  animals  for  sixty  days.     All  flax  raised  by  the  debtor  and 
the  manufactures  therefrom,  and  all  cloth  manufactured  in  the 
family  of  the  debtor  for  their  own  use ;  all  spinning  wheels  and 
looms  and  other  instruments  of  domestic  labor  kept  for  family  use. 
The  earnings  of  such  debtor  for  his  personal  service,  or  those  of  his 
family,  at  any  time  within  sixty  days  next  preceding  the  levy. 

8.  All  fire  engines,  hooks  and  ladders,  with  the  carts,  trucks 
and  carnages,  hose,  buckets,  implements  and  apparatus.     All  fur- 
niture and  uniforms  of  any  fire  company  or  department  now  exist- 
ing, or  which  may  be  under  the  laws  of  this  territory  hereafter 
organized. 

9.  All    arms,  ammunitions,    uniforms,  and  accoutrements,  re- 
quired by  law  to  be  kept  by  a  person. 

10.  All  court-houses,  jails,  public  offices  and  buildings,  school 
houses,  and  houses  of  public  worship,  lots,  grounds  and   personal 
property   appertaining  thereto.      The  fixtures,  furniture,  books, 
papers,   and   appurtenances   belonging   and   appertaining   to   the 
court-house,  jail,  and  public  offices  belonging  to  any  county,  or  for 
the  use  of  schools  or  houses  of  public  worship ;  and  all  cemeteries, 
public  squares,  parks  and  places,  town  halls,  markets  for  the  use 
of  fire  departments  and  military  organizations,  and  the  lots   and 
grounds  thereto  belonging,  or  held  by  any   town  or  incorporated 
city,  or  dedicated  to  such  town  or  city  to  health,  ornament,  or 
public   use,  to  the  use  of  any  fire  or  military  company  now  existing 
or  hereafter  organized. 


184  UTAH.  [Part  6. 

11.  For  homestead  exemption,  see  "  Homestead." 

REDEMPTION 

Of  real  property  may  be  made  by  the  defendant,  or  any  creditor 
subsequent  to  plaintiff 's  lien,  any  time  within  six  months  from  the 
day  of  sale. 


CHAPTER  IX. 

\ 

PROCEEDINGS  IN  AID  OF  EXECUTIONS. 

On  the  return  by  a  sheriff  or  marshal  of  an  execution  "  unsatis- 
fied," the  judgment  creditor  upon  affidavit  or  otherwise  showing  to 
the  satisfaction  of  the  Court,  or  of  the  judge  thereof,  that  the  judg- 
ment debtor  has  property  which  he  unjustly  refuses  to  apply 
towards  the  satisfaction  of  the  judgment,  may  apply,  and  the 
Court  or  judge  may,  by  an  order,  require  the  judgment  debtor  to 
appear  at  a  specified  time  and  place  before  such  judge,  or  a  referee 
appointed  by  him,  to  answer  under  oath  concerning  the  same ;  and 
such  proceedings  may  thereupon  be  had  for  the  application  of  the 
property  of  the  judgment  debtor  towards  the  satisfaction  of  the 
judgment,  as  are  provided  upon  the  return  of  an  execution ;  that 
is,  to  require  the  appearance  of  witnesses,  and  hear  the  same,  and 
make  orders  in  relation  thereto.  And  on  proof  by , affidavit,  or 
otherwise,  that  any  person  or  corporation  has  property  of  such  judg- 
ment debtor,  or  is  indebted  to  him  in  an  amount  exceeding  $50,  the 
judge  may  by  order  require  such  person,  or  corporation,  or  any 
officer  or  member  thereof,  to  appear  at  a  specified  time  and  place 
before  him,  or  a  referee  appointed  by  him,  and  answer  concerning 
the  same. 

The  judge  or  referee  may  order  any  property  of  the  judgment 


Chap.  10.]  UTAH.  185 

debtor  not  exempt  from  execution  in  the  hands  of  such  debtor,  or 
any  other  person,  or  due  to  the  judgment  debtor,  to  be  applied 
towards  the  satisfaction  of  the  judgment. 

If  it  appear  that  a  person  or  corporation,  alleged  to  have  prop- 
erty of  the  judgment  debtor  or  indebted  to  him,  claims  an  in- 
terest in  the  property  adverse  to  him,  or  denies  the  debt,  the 
Court  or  judge  may  authorize,  by  an  order  made  to  that  effect, 
the  judgment  creditor  to  institute  an  action  against  such  person  or 
corporation  for  the  recovery  of  such  interest  or  debt ;  and  the 
Court  or  judge  may,  by  order,  forbid  a  transfer  or  other  disposition 
of  such  interest  or  debt,  until  an  action  can  be  commenced  and 
prosecuted  to  judgment.  Such  order  may  be  modified  or  vacated 
by  the  judge  granting  the  same,  or  the  Court  in  which  the  action 
is  brought,  at  any  time,  on  such  terms  as  may  be  just. 


CHAPTER  X. 

SECURITY  FOR  COSTS. 

It  is  made  the  duty  of  the  clerk  of  the  District  Court,  in  all  civil 
actions,  to  require  the  party  commencing  the  suit  to  pay  in  ad- 
vance or  secure  by  bond  with  security  the  payment  of  the  probable 
amount  of  the  costs  of  the  action,  provided  that  the  said  costs  shall 
at  the  conclusion  of  the  trial  be  paid  by  the  party  against  whom 
said  costs  are  adjudged  by  the  Court. 


186  UTAH.  [Part  6. 


CHAPTER  XI. 


APPEALS 

From  Justices'  Courts  to  the  proper  District  Court  may  be  taken 
any  time  within  thirty  days  after  rendition  of  judgment,  except 
where  the  judgment  is  for  an  amount  less  than  $ 20,  by  filing  a 
notice  of  such  appeal,  and  serving  a  copy  on  the  opposite  party  ; 
and  by  filing  with  the  justice,  within  five  days  after  filing  the  notice 
of  appeal,  an  undertaking  with  two  good  sureties,  who  shall  justify 
under  oath. 

APPEALS  FROM  THE  DISTRICT  COURT 

May  be  taken  to  the  Supreme  Court  from  any  final  judgment  or 
order  in  a  civil  action,  except  when  expressly  made  final  by  the  act, 
any  time  within  one  year  after  the  rendition  of  judgment.  From 
any  order  granting  or  refusing  a  new  trial,  or  from  an  order  grant- 
ing or  dissolving  an  injunction,  or  from  an  order  refusing  to  grant  or 
dissolve  an  injunction,  and  from  any  special  order  made  after  the 
final  judgment,  within  sixty  days  after  the  order  is  made  and  en- 
tered upon  the  minutes  of  the  Court ;  or  from  any  interlocutory 
judgment  or  order  in  cases  of  partition,  sale  or  division,  to  be  taken 
within  sixty  days  after  the  rendition  of  the  same. 

The  appeal  is  taken  by  filing  with  the  clerk  of  the  Court  with 
whom  the  judgment  or  order  appealed  from  is  entered,  a  notice  stat- 
ing the  appeal  from  the  same,  or  some  specific  part  thereof,  and 
serving  a  copy  of  the  notice  on  the  adverse  party  or  his  attorney. 
To  render  the  appeal  effectual  for  any  purpose,  in  any  case,  a  writ- 
ten undertaking  shall  be  executed  on  the  part  of  the  appellant,  by 
at  least  two  sureties,  to  the  effect  that  the  appellant  will  pay  all 
damages  and  costs  which  may  be  awarded  against  him  on  the  ap- 
peal ;  or  a  sum  not  exceeding  $100  shall  be  deposited  with  the 
clerk  with  whom  the  judgment  or  order  was  entered,  to  abide  the 
event  of  the  appeal ;  such  undertaking  shall  be  filed,  or  such  de- 


Chap.  12.]  UTAH.  187 

posit  made  with  the  clerk,  within  at  least  five  days  after  the  notice 
of  appeal  is  filed. 

An  appeal  from  a  judgment  or  order  for  the  payment  of  money 
shall  not  stay  the  execution  of  the  judgment  or  order,  unless  a 
written  undertaking  is  executed  on  the  part  of  the  appellant,  by 
two  or  more  sureties,  stating  their  places  of  residence  and  occupa- 
tion, to  the  effect  that  they  are  bound  in  double  the  amount  named 
in  the  judgment  or  order  appealed  from  ;  and  should  the  judgment 
or  order  appealed  from,  or  any  part  thereof,  be  affirmed,  the 
appellant  shall  pay  the  amount  directed  to  be  paid  by  the 
judgment  or  order,  or  the  part  thereof  which  shall  be  affirmed, 
and  all  damages  and  costs  which  may  be  awarded  against  the  ap- 
pellant, and  in  the  kind  of  money  in  which  the  Court  to  which  it  is 
appealed  shall  order  the  payment  thereof. 

The  sureties  shall  file  affidavit  as  to  their  worth,  over  all  just 
debts  and  liabilities,  exclusive  of  property  exempt  from  execution. 

When  the  appeal  shall  be  thus  perfected,  it  shall  stay  all  pro- 
ceedings upon  the  judgment,  until  the  action  of  the  appellate  Court 
shall  be  had.  The  appellee  may  object  to  the  sureties,  as  to  their 
sufficiency,  and  if  the  objection  be  well  taken,  and  the  appellant, 
upon  five  days'  notice,  fail  to  give  additional  security,  the  appeal 
shall  be  regarded  as  if  not  taken. 

Upon  trial  in  the  appellate  Court,  the  successful  party  is  entitled 
to  have  the  judgment  remitted  to  the  Court  from  which  the  appeal 
was  taken,  for  execution. 


CHAPTER  XII. 

ESTATES  OF  DECEASED  PERSONS.  ' 

Claims  against  deceased  estates  must  be  made  within  two  years 
after  administration  begins. 

Satisfactory  proof  of  the  amount  due  must  be  made  to  the  Pro- 


188  UTAH.  [Part  6. 

bate  Court ;  this  may  be  made  after  expiration  of  two  years,  pro- 
vided notice  of  the  claim  be  given  within  the  two  years. 

The  executor  or  administrator  of  the  estate  has  as  long  to  make 
final  settlement  in,  as  the  Probate  Court  will  permit,  which  is 
usually,  as  long  as  he  can  show  any  unsettled  business  of  the 
estate. 

The  widow  or  other  members  of  the  family  are  entitled  to  the 
homestead,  and  such  further  allowance  as  the  Probate  Court  may 
deem  proper  for  the  maintenance  of  the  widow. 

The  largest  discretion  is  given  the  Court  in  making  orders  re- 
specting the  estate. 


CHAPTER  XIII. 


HOMESTEADS. 

•  There  shall  be  allowed  homestead  exemption,  to  be  selected  by 
the  debtor,  consisting  of  lands  and  appurtenances  thereon  not  ex- 
ceeding in  value  one  thousand  dollars  for  the  judgment  debtor,  and 
the  further  sum  of  two  hundred  and  fifty  dollars  for  each  member 
of  the  family,  (which,  in  some  instances,  amount  to  thirty  or  forty, 
including  wives  and  children).  If  the  premises  amount  in  value  to 
more  than  the  homestead  exemption,  it  may  be  ordered  sold  or  par- 
titioned, and  in  case  of  sale,  the  excess  over  the  exemption  valua- 
tion is  subject  to  execution  ;  and  in  case  of  partition,  the  part  divid- 
ed off  from  the  homestead  is  subject  to  sale  on  execution,  the  valu- 
ation to  be  made  by  persons  chosen  by  the  debtor  and  the  officers 
having  the  execution. 


Chap.  14.]  UTAH.  189 


CHAPTER  XIV. 

DEPOSITIONS 

May  be  taken  in  any  action  at  any  time  after  service  of  summons, 
or  the  appearance  of  the  defendant,  and  in  a  special  proceeding 
after  a  question  of  fact  has  arisen  therein,  in  the  following  cases : 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding,  or  a 
person  for  whose  immediate  benefit  the   action  or  proceeding  is 
prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in  which  his  tes- 
timony is  to  be  used. 

3.  When  the  witness  is  about  to  leave  the  county  where  the 
action  is  to  be  tried,  and  will  probably  continue  absent  when  his 
testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial,  is  too 
infirm  to  attend,  or  resides  within  the  county  but  more  than  fifty 
miles  from  the  place  of  trial. 

Either  party  may  have  a  deposition  of  a  witness  taken  before 
a  notary  public,  justice  of  the  peace,  judge,  or  clerk  of  a  court,  by 
serving  notice  on  the  adverse  party  of  the  time  and  place  of  ex- 
amination, together  with  a  copy  of  the  affidavit  showing  the  case  to 
be  one  of  the  kind  above  mentioned.  The  notice  must  be  served 
at  least  five  days,  and  one  additional  day  for  every  twenty-five 
miles  of  distance  of  the  place  of  examination  from  the  residence  of 
the  person  served,  unless  for  cause  the  Court  prescribes  a  shorter 
time. 

The  witness  may  be  cross-examined,  and  after  having  his  testi- 
mony carefully  examined  and  read  to  him,  he  shall  sign  it ;  and 
the  officer  taking  the  deposition  shall  certify  it  up  to  the  proper 
Court,  enclosed  in  an  envelope,  and  addressed  to  the  clerk  of  the 
Court  in  which  the  action  is  pending,  or  to  such  person  as  the  par- 
ties may  agree  upon,  or  transmit  through  the  mail ;  and  such  de- 
position may  be  used  by  either  party  on  the  trial.  No  objections 
to  the  form  of  an  interrogatory  at  the  trial  will  be  heard,  unless 


190  UTAH.  [Part  6. 

made  at  the  time  of  taking,  if  the  party  making  the  objection  is  in 
attendance  at  the  taking 

O 

If  a  deposition  be  taken  on  account  of  the  absence  from  the 
county,  or  intended  absence,  or  because  the  witness  is  too  infirm  to 
attend,  before  being  used  proof  must  be  made  by  affidavit  or  oral 
testimony  that  the  witness'  disability  continues,  to  the  best  of  affi- 
ant's knowledge.  The  deposition  may  be  read  in  case  of  his  death. 

Depositions  once  taken  may  be  read  in  any  stage  of  the  cause 
by  either  party,  and  shall  be  deemed  evidence  of  the  party  read- 
ing them. 

If  a  deposition  be  taken  out  of  the  Territory,  it  must  be  upon 
a  commission  issued  by  the  Court,  under  its  seal,  upon  five  days' 
notice  to  the  adverse  party  of  the  application  for  a  commission,  and 
shall  be  issued  to  a  person  to  be  agreed  upon  between  the  parties  ; 
and,  in  case  of  disagreement,  then  to  such  person  as  the  Court 
may  appoint,  or  to  a  commissioner  appointed  by  the  Governor  of 
this  Territory  to  take  affidavits  and  depositions  in  the  States  or 
Territories. 

Such  interrogatories,  direct  and  cross,  as  the  parties  prepare,  or, 
in  case  of  disagreement,  such  as  the  Court  shall  settle,  shall  be  an- 
nexed to  the  commission.  The  cause  shall  not  be  continued  on  ac- 
count of  the  non-return  of  the  commission  and  deposition,  unless 
upon  evidence  satisfactory  to  the  Court,  that  the  testimony  of  the 
witness  is  necessary,  and  that  proper  diligence  has  been  used  to  ob- 
tain it. 

The  statute  also  provides  for  the  taking  of  testimony,  and  for  its 
perpetuation,  upon  application  to  the  Court,  showing  that  the  appli- 
cant expects  to  be  a  party  to  an  action  in  this  Territory,  and  giv- 
ing the  names  of  persons  whom  he  expects  will  be  adverse  parties ; 
that  the  proof  of  some  facts  is  necessary  to  perfect  the  title  to 
property  in  which  he  is  interested,  or  to  establish  a  marriage,  de- 
scent, heirship,  or  any  other  matter  which  it  may  hereafter  become 
material  to  establish  ;  though  no  suit  may  at  the  time  be  anticipated. 
The  names  of  the  witnesses  and  the  general  outline  of  the  facts  ex- 
pected to  be  proven,  to  be  stated.  Affidavits  or  other  proofs  filed 
with  the  testimony  shall  be  prima  facie  evidence  of  the  facts  stated 
therein.  No  particular  form  of  the  certificate  of  the  officer  taking 
the  deposition  is  prescribed  by  the  statute. 


Chap.  15.]  UTAH.  191 

CHAPTER  XY. 

JUDICIAL  RECORDS,  HOW  PROVEN. 

A  judicial  record  of  this  Territory,  or  of  the  United  States,  or  of 
any  State  or  Territory  of  the  United  States,  may  be  admitted  in  the 
Courts  of  this  Territory  by  the  attestation  of  the  clerk,  with  the 
seal  of  the  Court  annexed,  together  with  the  certificate  of  the 
judge,  chief  justice,  or  presiding  magistrate,  as  the  case  may  be, 
that  said  attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
production  of  a  copy  thereof,  certified  by  the  clerk,  with  the  seal 
of  the  Court  annexed,  if  there  be  a  clerk  and  seal,  to  be  a  true 
copy  of  such  record,  together  with  a  certificate  of  the  judge  of  the 
Court  that  the  person  making  the  certificate  is  the  clerk  of  the 
Court,  or  the  legal  keeper  of  the  records ;  and  in  either  case,  that 
the  signature  is  genuine,  and  the  certificate  in  due  form ;  together 
with  the  certificate  of  the  minister  or  embassador  of  the  United 
States,  or  of  a  consul  of  the  United  States,  in  such  foreign  country, 
that  there  is  such  a  Court,  specifying  generally  its  jurisdiction,  and 
verifying  the  signature  of  the  judge  and  clerk,  or  other  legal  keeper 
of  the  record. 

A  copy  of  the  judicial  record -of  a  foreign  country  shall  also  be 
admissible  in  evidence,  upon  proof,  first,  that  the  copy  offered  has 
been  compared  by  the  witness  with  the  original,  and  is  an  exact 
transcript  of  the  whole  of  it ;  and  that  sueh  original  was  in  the  cus- 
tody of  the  clerk  of  the  Court,  or  other  legal  keeper  of  the  same ; 
and  that  the  copy  is  duly  attested  by  the  seal  which  is  proved  to  be 
the  seal  of  the  Court  where  the  record  remains,  if  it  be  the  record 
of  a  Court ;  or  if  there  be  no  such  seal,  or  if  it  be  not  a  record  of  a 
Court,  by  the  signature  of  the  legal  keeper  of  the  original. 


192  UTAH.  [Fart  6. 


CHAPTER  XVI. 


ACKNOWLEDGMENTS. 

Deeds,  mortgages,  powers  of  attorney,  or  other  instruments 
affecting  the  title  to  real  estate,  must  be  acknowledged  or  proved 
before  they  can  legally  be  placed  upon  record. 

The  following  is  the  form  of  the  acknowledgment  certificate : 

STATE  OR  TERRITORY  or )  gg 

COUNTY,  i 

On  this day  of A.  D.  187  ,  personally  appeared  be- 
fore me ,  a  notary  public  in  and  for  said  county, , 

who  is  personally  known  to  me  to  be  the  person  described  in  and 
who  executed  the  foregoing  instrument,  who  acknowledged  to  me 
that  he  executed  the  same  freely  and  voluntarily,  and  for  the  uses 
and  purposes  therein  mentioned.  In  witness  whereof,  I  have  here- 
unto set  my  hand  and  official  seal,  on  the  day  and  year  last  above 

written.  , 

[SEAL.]  Notary  Public. 

The  following  officers  are  authorized  to  take  acknowledgments, 
and  certify  to  them : 

If  acknowledged  or  proven  within  this  Territory,  by  some  judge 
or  clerk  of  a  Court  having  a  seal,  or  some  notary  public,  or  county 
recorder,  or  by  a  justice  of  the  peace  of  the  county  where  the  con- 
veyance is  executed,  and  to  be  recorded. 

If  acknowledged  or  proved  out  of  this  Territory,  and  within  any 
State  or  Territory  in  the  United  States,  by  some  judge  or  clerk  of 
any  Court  of  the  United  States,  or  of  any  State  or  Territory  having 
a  seal,  or  by  a  notary  public,  or  by  a  commissioner  appointed  by 
the  Governor  of  this  Territory  for  that  purpose. 

If  acknowledged  or  proved  without  the  United  States,  by  some 
judge  or  clerk  of  any  Court  of  any  State,  Kingdom,  or  Empire 
having  a  seal,  any  notary  public  therein,  or  any  minister,  com- 


Chap.  17.]  UTAH.  193 

missioner,  or  consul  of  the  United  States  appointed  to  reside  there- 
in. Such  officers  may  take  and  certify  such  proofs  or  acknowledg- 
ments by  their  respective  deputies,  in  the  names  of  their  principals. 

When  granted  by  a  judge  or  clerk,  the  certificate  shall  be 
under  the  seal  of  his  Court. 

When  granted  by  an  officer  who  has  an  official  seal,  it  shall  be 
under  such  seal. 

By  a  justice  of  the  peace,  under  his  hand. 


CHAPTER  XVII. 

PARTNERSHIPS. 

The  statute  provides  how  partners  may  be  summoned,  and  how 
judgments  against  partners  may  be  rendered,  but  is  thus  brief 
and  pointed. 

When  two  or  more  persons,  associated  in  any  business,  transact 
such  business  in  a  common  name,  whether  it  comprises  the  names 
of  such  persons  or  not,  the  associates  may  be  sued  by  such  common 
name,  the  summons  in  such  cases  being  served  on  one  or  more 
of  the  associates,  but  the  judgment  in  such  cases  shall  bind  only 
the  joint  property  of  the  associates.  The  private  property  of  per- 
sons engaged  in  copartnership  shall  be  held  liable  for  the  debts 
of  the  firm,  only  when  the  partnership  property  shall  prove  insuffi- 
cient to  pay  them.  The  assignment  of  a  partner  in  trade  to  satisfy 
a  creditor  of  the  firm  shall  be  deemed  valid  in  law,  but  is  not  to  be 
construed  to  authorize  the  assignment  of  partnership  effects  to 
satisfy  individual  claims  of  any  of  the  parties. 
13 


194  UTAH.  [Part  6. 


CHAPTER  XVIII. 


MARRIED  WOMEN. 

All  property  owned  by  either  spouse  before  marriage,  and  that 
acquired  after  marriage  by  gift,  bequest,  devise,  or  descent,  is  the 
separate  property  of  that  spouse  by  whom  the  same  is  owned  or 
acquired ;  and  as  such,  may  be  held,  owned  and  controlled,  and 
transfered  and  disposed  of  by  the  spouse  so  owning  or  acquiring  it, 
without  any  limitation  or  restriction  by  reason  of  marriage. 

Either  spouse  may  sue  and  be  sued  in  law.  No  right  of  dower 
shall  be  allowed. 


CHAPTER   XIX. 


CORPORATIONS. 

Any  number  of  persons,  not  less  than  six,  one-third  of  whom  be- 
ing residents  of  the  Territory,  may  incorporate  for  purposes  of 
manufacturing,  mining,  or  conducting  any  commercial  or  other  in- 
dustrial pursuit,  or  for  constructing  roads,  ditches,  colonization  and 
improvements  for  lands,  colleges,  seminaries,  churches,  libraries,  or 
any  benevolent,  charitable,  Christian  or  scientific  associations,  or  for 
any  rightful  subject  consistent  with  the  Constitution  of  the  United 
States,  and  the  laws  of  the  Territory. 

Stock  may  be  subscribed  and  paid  up  in  property.  No  individ- 
ual liability  upon  stockholders.  The  probate  judge  is  the  officiat- 
ing officer  in  effecting  an  incorporation. 


Chaps.  20,  21.]  UTAH.  /        o™  195 

UNIVERSITY   I 


CHAPTER  XX. 

CHATTEL  MORTGAGES. 

We  have  no  statute  defining  what  property  is  the  subject  of 
chattel  mortgage,  but  an  action  for  the  recovery  of  debts  secured 
by  a  mortgage  on  either  real  or  personal  property,  or  both,  is  pro- 
vided for  by  statute,  giving  power  to  the  Courts  to  render  judg- 
ment, and  make  decree  of  foreclosure,  and  order  of  sale  of  the 
mortgaged  property,  in  satisfaction  of  the  debt,  and  providing  for 
an  ordinary  judgment  lien  and  execution  for  unpaid  balance,  after 
sale  of  the  mortgaged  property. 


CHAPTER  XXI. 

INTEREST  AND  USURY. 

Ten  per  cent,  per  annum  interest  is  allowed  on, debts  due,  where 
no  contract  as  to  interest  exists.  There  is  no  usury  statute,  and 
parties  are  at  liberty  to  contract  for  rates  of  interest  without  limit, 
and  any  agreed  rate  is  collectable. 


PAKT  YII. 


IDAHO  TERRITORY. 


PREPARED    EXPRESSLY    FOR   THIS    WORK    BY    JONAS    W.    BROWN, 

IDAHO  CITY. 


CHAPTER  I. 

COURTS,  THEIR  JURISDICTION  AND  TERMS. 

The  judicial  power  of  the  Territory  is  vested  in  ar  Supreme  Court, 
three  District  Courts,  Probate  Courts  for  each  county,  and  Justices 
of  the  Peace. 

THE  SUPREME  COURT 

Has  appellate  jurisdiction  in  all  civil  cases  where  the  amount  in 
dispute  exceeds  in  value  one  hundred  dollars,  and  in  all  criminal 
cases  tried  in  District  Courts.  Meets  at  Boise  City  annually,  on 
the  first  Monday  of  January. 

DISTRICT  COURTS 

Have  original  jurisdiction  in  all  civil  cases  where  the  amount  in 
dispute  exceeds  one  hundred  dollars,  and  in  all  criminal  cases 


198  IDAHO.  [Part  7. 

prosecuted  by  indictment.  Their  appellate  jurisdiction  extends  to 
hearing  all  cases  on  appeal  from  Probate  Courts  and  Justices' 
Courts.  They  have  exclusive  jurisdiction  in  all  equity  cases,  and 
in  all  cases  involving  the  title  to  real  estate. 

The  terms  of  the  District  Courts  are  fixed  annually  for  the  sev- 
eral counties  by  the  Supreme  Court. 

THE  PROBATE  COURTS 

Have  jurisdiction  of  all  probate  matters,  same  as  in  California. 
They  have  also  concurrent  jurisdiction  (by  special  act  of  Con- 
gress) with  the  District  Courts  in  all  civil  actions,  when  the  amount 
in  controversy  shall  not  exceed  five  hundred  dollars,  exclusive  of 
interest ;  and  the  same  rules  of  practice  govern  in  Probate  Courts 
in  civil  cases  as  in  the  District  Courts,  except  in  the  matter  of 
appeals  to  the  District  Court.  The  terms  of  the  Probate  Courts 
commence  on  the  fourth  Monday  in  each  month. 

JUSTICES'  COURTS 

Have  jurisdiction  in  all  civil  actions  where  the  sum  or  damages 
claimed  do  not  exceed  one  hundred  dollars,  excepting  matters 
where  the  boundaries  of  land  are  in  dispute.  These  Courts  are 
always  open  for  business. 


CHAPTER  II. 

COMMENCEMENT   OF  ACTIONS. 

Civil  actions  in  the  District  Courts  and  the  Probate  Courts  shall 
be  commenced  by  the  filing  pf  a  complaint  with  the  clerk  of  the 
Court  in  which  the  action  is  brought :  Provided,  that  after  the 


Chap.  3.]  IDAHO.  199 

filing  of  the  complaint,  a  defendant  in  the  action  may  appear, 
answer,  or  demur,  whether  the  summons  has  been  issued  or  not, 
and  such  appearance,  answer,  or  demurrer  be  deemed  a  waiver  of 
summons. 

The  clerk  shall  indorse  on  the  complaint  the  day,  month,  and 
year  the  same  is  filed  ;  and  at  any  time  within  one  year  after  the 
filing  of  the  same,  the  plaintiff  may  have  a  summons  issued.  The 
act  defining  jurisdiction  of  Probate  Courts  provides  that  the  sum- 
mons may  be  issued  at  any  time  within  six  months  from  the  filing 
of  the  complaint. 

In  the  District  Court  the  defendant  must  answer  in  ten  days,  if 
served  within  the  county  in  which  the  action  is  brought ;  in  twenty 
days,  if  served  without  the  county,  but  within  the  judicial  district 
in  which  the  action  is  brought.  In  all  other  cases,  thirty  days.  In 
the  Probate  Court,  answer  must  be  filed  in  ten  days. 


CHAPTER  III. 

f 
PLACE   OF  TRIAL   OF   CIVIL  ACTIONS. 

Actions  for  the  following  causes  shall  be  tried  in  the  county  in 
which  the  subject  of  the  action,  or  some  part  thereof,  is  situated, 
subject  to  the  power  of  the  Court  to  change  the  place  of  trial: 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest 
therein,  or  for  the  determination,  in  any  form,  of  such  right  o-r  in- 
terest, or  for  injuries  to  real  property. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  a  mortgage  of  real  property  ;  provided, 
when  such  real  property  is  situate  partly  in  one  county  and  partly 
in  another,  the  plaintiff  may  select  either  of  said  counties,  and  the 
county  so  selected  shall  be  the  proper  county  for  the  trial  of  such 
action. 


200  IDAHO.  [Part  7. 

Actions  for  the  following  causes  shall  be  tried  in  the  county 
•where  the  cause,  or  some  part  thereof,  arose  ;  subject  to  the  like 
power  of  the  Court  to  change  the  place  of  trial : 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  a  stat- 
ute, except  that  when  it  is 'imposed  for  an  offense  committed  on  a 
lake,  river,  or  other  stream  of  water  situated  in  two  or  more  coun- 
ties, the  action  may  be  brought  in  any  county  bordering  on   such 
lake,  river,  or  other  stream,  and  opposite  the  place  where  the  offense 
was  committed. 

2.  Against  a  public  officer,  or  person  especially  appointed  to  exe- 
ecute  his  duties,  for  an  act  done  by  him  in  virtue  of  his  office,  or 
against  a  person  who,  by  his  command,  or  in  his  aid,  does  anything 
touching  the  duties  of  such  officer. 

In  all  other  cases,  the  action  shall  be  tried  in  the  county  in 
which  the  defendants,  or  any  of  them,  may  reside  at  the  commence- 
ment of  the  action ;  or  if  none  of  the  defendants  reside  in  this  Ter- 
ritory, or,  if  residing  in  this  Territory,  the  county  in  which  they  so 
reside  be  unknown  to  the  plaintiff,  the  same  may  be  tried  in  any 
county  which  the  plaintiff  may  designate  in  his  complaint ;  and  if  any 
defendant  or  defendants  may  be  about  to  depart  from  the  Territory, 
such  action  may  be  tried  in  any  county  where  either  of  the  parties 
reside  or  may  be  found,  or  service  be  had ;  subject,  however,  to  the 
power  of  the  Court  to  change  the  place  of  trial,  as  provided  in  the 


CHAPTER  IV. 

LIMITATIONS  OF  CIVIL  ACTIONS. 

Five  Years  : 

Real  estate,  including  quartz  mines  or  lodes,  judgments  or  de- 
crees of  any  Court  of  the  United  States,  or  of  any  State  or  Terri- 
tory of  the  United  States. 


Chap.  4.]  IDAHO.  201 

Four  Years : 

Any  contract,  obligation,  or  liability  founded  upon  an  instrument 
of  writing. 

Three  Years: 

Trespass  upon  real  property,  taking-,  detaining  or  injuring  goods' 
or  chattels  or  for  the  specific  recovery  of  personal  property.  Relief 
on  ground  of  fraud. 

Two  Years  : 

Contract  or  liability  not  founded  on  an  instrument  of  writing,  in- 
cluding accounts.  An  action  for  libel  or  slander. 

One  Year : 
Placer  mining  claims. 

General   Provisions  : 

An  action  upon  any  contract,  obligation  or  liability  for  the  pay- 
ment of  money,  founded  upon  an  instrument  of  writing  executed 
out  of  this  Territory,  or  any  other  Territory  from  which  this  Terri- 
tory is  in  part  formed,  can  only  be  commenced  as  follows  : 

1.  Within  one  year,  when  more  than  two  and  less  than  five 
years  have  elapsed  since  the  cause  of  action  accrued. 

An  action  upon  any  judgment,  contract,  obligation  or  liability 
for  the  payment  of  money  or  damages,  obtained,  executed,  or  made 
out  of  this  Territory,  or  any  other  Territory  from  which  this  Terri- 
tory is  in  part  formed,  shall  only  be  commenced  within  three  years 
after  the  party  making  such  liabilities  shall  be  a  resident  of  tliis 
Territory. 

No  acknowledgment  of  promise  shall  be  sufficient  evidence  of  a 
new  continuing  contract,  whereby  to  take  the  case  out  of  the  oper- 
ation of  the  statute,  unless  the  same  be  contained  in  some  writing 
signed  by  the  party  to  be  charged  thereby. 


202  IDAHO.  [Part  7. 


CHAPTER  V. 

ATTACHMENTS. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterward,  may  have  the  property  of  the  defendant  attached  as 
security  for  the  satisfaction  of  any  judgment  that  may  be  recovered, 
unless  the  defendant  give  security  to  pay  such  judgment,  in  the 
following  cases : 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  di- 
rect payment  of  money,  which  contract  is  not  secured  by  a  mort- 
gage, lien,  or  pledge  upon  real  or  personal  property ;    or  if  so 
secured,  that  such  security  has,  without  any  act  of  the  plaintiff,  or 
the  person  to  whom  the  security  was  given,  become  valueless. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a 
defendant  not  residing  in  this  Territory. 

The  clerk  of  the  Court  shall  issue  the  writ  of  attachment  upon 
receiving  an  affidavit  by  or  on  behalf  of  the  plaintiff,  which  shall  be 
filed,  setting  forth — 

1.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying  the 
amount  of  such  indebtedness  over  and  above  all  legal  set-offs  and 
counter-claims,  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money  ;  and  that  the  payment  of  the  same  has  not  been 
secured  by  any  mortgage,  lien,  or  pledge  upon  real  or  personal 
property  ;  or,  if  so  secured,  that  such  security  has,  without  any  act 
of  the  plaintiff,  or  the  person  to  whom  the  security  was  given,  be- 
come valueless  ;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying  the 
amount  of  the  indebtedness  as  near  as  may  be,  over  and  above  all 
legal  set-offs  and  counter-claims,  and  that  the  defendant  is  a  non- 
resident of  the  Territory%;  and, 

3.  That  the  attachment  is  not  sought,  and  the  action  is  not  prose- 
cuted, to  hinder,  delay,  or  defraud  any  creditor  or  creditors  of  the 
defendant. 


Chap.  6,]  IDAHO.  203 

Before  issuing  the  writ,  the  clerk  must  require  a  written  under- 
taking on  the  part  of  the  plaintiff,  in  a  sum  not  less  than  two  hun 
dred  dollars,  and  not  exceeding  the  amount  claimed  by  the  plaintiff, 
with  sufficient  sureties,  to  the  effect  that  if  the  defendant  recover 
judgment,  the  plaintiff  will  pay  all  costs  that  he  may  sustain  by 
reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the 
undertaking,  if  the  attachment  be  wrongfully  issued. 


CHAPTER  VI. 

ARREST  IN  CIVIL  ACTION. 

The  defendant  may  be  arrested,  as  hereinafter  provided,  in  the 
following  cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause 
of  action  arising  upon  contract,  express  or  implied,  when  the  de- 
fendant is  about  to  depart  from  the  Territory,  with  intent  to  de- 
fraud his  creditors ;  or  when  the  action  is  for  willful  injury  to  person, 
to  character,  or  to  property,  knowing  the  property  to  belong  to 
another. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry, 
or  for  money  or  property  embezzled,  or  fraudulently  applied,  or 
converted  to  his  own  use  by  a  public  officer,  or  an  officer  of  a  cor- 
poration, or  an  attorney,  factor,  broker,  agent,  or  clerk,  in  the  course 
of  his  employment  as  such,  or  by  any  other  person  in   a  fiduciary 
capacity,  or  for  misconduct  or  neglect  in  office,  or  in  a  professional 
employment,  or  for  a  willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property,  or  any  part  thereof,  has  been 
concealed,  removed,  or  disposed  of,  to  prevent  its  being  found  or 
taken  by  the  sheriff, 


204  IDAHO.  [Part  7. 

4.  When  the  defendant  has  been  guilty  of  fraud  in  contracting 
the  debt  or  incurring  the  obligation  for  which  the  action  is  brought, 
or  in  concealing  or  disposing  of  the  property,  for  the  taking,  deten- 
tion, or  conversion  of  which  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

To  obtain  an  order  of  arrest,  it  must  appear  to  the  judge,  by  the 
affidavit  of  the  plaintiff  or  some  other  person,  that  a  sufficient  cause 
of  action  exists,  and  that  the  case  is  one  of  those  above  mentioned. 
The  affidavit  must  be  positive,  or  upon  information  and  belief.  Be- 
fore making  an  order,  the  judge  must  require  a  written  undertak- 
ing on  the  part  of  plaintiff,  with  sureties  in  an  amount  to  be  fixed 
by  the  judge,  which  must  be  at  least  five  hundred  dollars. 


CHAPTER  VII. 

JUDGMENTS  AND  JUDGMENT  LIENS, 

In  an  action  on  a  contract  or  obligation,  in  writing,  for  the  direct 
payment  of  money,  made  payable  in  a  specified  kind  of  money  or 
currency,  judgment  for  the  plaintiff  may  follow  the  contract  or  obli- 
gation, and  be  made  payable  in  the  kind  of  money  or  currency 
specified  therein. 

From  the  time  the  judgment  is  docketed  it  becomes  a  lien  upon 
all  the  real  property  of  the  judgment  debtor,  not  exempt  from  exe- 
cution in  the  county,  owned  by  him  at  the  time,  or  which  he  may 
afterwards  acquire,  until  the  lien  expires.  The  lien  continues  for 
two  years. 

A  transcript  of  the  original  docket,  certified  by  the  clerk,  and 
filed  with  the  recorder  of  any  other  county,  becomes  a  lien  on  the 
property  of  the  judgment  debtor  in  such  county,  and  continues  for 
two  years. 


Chap.  8.]  IDAHO.  205 

A  transcript  of  a  judgment  of  a  Probate  Court,  filed  and  dock- 
eted in  the  office  of  the  district  clerk,  becomes  a  lien  upon  the  real 
estate  of  the  judgment  debtor  for  two  years  from  date  of  filing  and 
docketing. 

A  transcript  of  a  judgment  of  a  justice  of  the  peace  becomes  a 
lien  upon  real  estate  by  being  filed  and  recorded  in  the  county  re- 
corder's office.  By  filing  and  docketing  same  in  district  clerk's 
office,  the  clerk  may  issue  execution  to  any  other  county  in  the  Ter- 
ritory. 


CHAPTER  VIII. 

EXECUTIONS,  EXEMPTIONS,  SALE  AND  REDEMP- 
TION. 

A  writ  of  execution  to  enforce  the  judgment  may  be  issued  at 
any  time  within  five  years  after  the  entry  thereof.  In  all  cases 
other  than  for  the  recovery  of  money,  the  judgment  may  be  en- 
forced or  carried  into  execution  after  the  lapse  of  five  years  from 
the  date  of  its  entry,  by  leave  of  the  Court,  upon  motion  or  by 
judgment  for  that  purpose,  founded  upon  supplemental  pleadings. 

EXEMPTIONS  FROM  EXECUTION. 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  one  hundred 
dollars,  belonging  to  the  judgment  debtor. 

2.  Necessary  household,  table  and  kitchen  furniture  belonging 
to  the  judgment  debtor,  including  stove,  stovepipe,  and  stove  furni- 
ture of  whatever  kind,  wearing  apparel,  beds,  bedding  and  bed- 
steads, and  provisions  actually  provided  for  individual  or  family  use 
sufficient  for  three  months. 

3.  The  farming    utensils  or  implements  of  husbandry  of  the 


206  IDAHO.  [Part  7. 

judgment  debtor ;  also,  two  oxen,  or  two '  horses,  or  two  mules, 
and  their  harness ;  two  cows,  one  cart  or  wagon,  and  food  for  such 
oxen,  horses,  cows  or  mules  for  three  months;  also,  all  seed  grain 
or  vegetables  actually  provided,  reserved,  or  on  hand  for  the  pur- 
pose of  planting  or  sowing  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  the  sum  of  two  hundred  dollars  ; 
the  tools  and  implements  of  a  mechanic  necessary  to  carry  on  his 
trade  ;  the  instruments  and  chests  of  a  surgeon,  physician,  surveyor, 
and  dentist  necessary  to  the  exercise  of  their  profession,  with  the 
professional  library,  and  the  law  libraries  of  an  attorney  and 
counsellor  ;  also,  the  wardrobe  and  books  of  an  actor. 

4.  The  tents  and  furniture,  including  a  table,  camp  stools,  bed 
and  bedding  of  a  miner  ;  also  his  rocker,  shovels,  spades,  wheel- 
barrows, pumps,  and  other  instruments  used  in  mining,  with  provis- 
ions necessary  for  his  support  for  three  months. 

5.  Two  oxen,  two  horses,  or  two  mules,  and  their  harness,  and 
one  cart  or  wagon,  by  the  use  of  which  a  cartman,  teamster,  or 
other  laborer   habitually  earns  his  living,  and  the  food  for  such 
oxen,  horses,  or  mules,  for  three  months ;  and  a  horse  used  by  a 
physician  in  making  his  professional  visits. 

6.  All  fire   engines,  with  carts,  buckets,  hose,  and  apparatus 
thereto  appertaining,  of  any  fire  company  or  department  organized 
under  any  law  of  this  Territory. 

7.  All  arms  and  accoutrements  required  by  law  to  be  kept  by 
any  person. 

8.  All   court-houses,  jails,   public  offices   and  buildings,   lots, 
ground   and   personal   property,    the    fixtures,   furniture,   books, 
papers,  and  appurtenances  belonging  to  any  county  in  this  Terri- 
tory ;  and  all  cemeteries,  public  squares,  parks  and  public  buildings, 
town  halls,  markets,  buildings  appertaining  to  the  fire  departments, 
and  the  lots  and  grounds  thereto  belonging  and  appertaining,  owned 
or  held  by  any  town  or  incorporated  city,  or  dedicated  by  such  town 
or  city  to  health,  ornament,  or  public  use. 

No  article  above  mentioned  shaft  be  exempt  from  execution 
issued  upon  a  judgment  recovered  for  its  price,  or  upon  a  mort- 
gage thereon. 


Chap.  8.]  IDAHO.'  207 


SALE  OF  PROPERTY  UNDER  EXECUTION. 

In  case  of  perishable  property,  by  posting  written  notices  of  the 
time  and  place  of  sale  in  three  public  places  of  the  precinct,  for  a 
reasonable  time,  considering  the  condition  of  property.  In  case  of 
other  personal  property,  by  posting  similar  notices  in  three  public 
places  of  the  precinct,  township  or  city  where  the  sale  is  to  take 
place,  not  less  than  five,  nor  more  than  ten  days  successively.  In 
case  of  real  property,  by  posting  similar  notices,  particularly  des- 
cribing the  property,  for  twenty  days  successively,  in  three  public 
places  of  the  precinct,  township,  or  city  where  the  property  is 
situated,  and  also  where  the  property  is  to  be  sold,  and  publishing  a 
copy  thereof  once  a  week  for  the  same  period  in  some  newspaper 
published  in  the  county,  if  there  be  one.  All  sales  of  property 
under  execution  shall  be  made  at  auction  to  the  highest  bidder, 
and  shall  be  made  between  the  hours  of  nine  in  the  morning  and 
five  in  the  afternoon. 

REDEMPTION. 

Real  estate  sold  on  execution  under  a  judgment  may  be  redeem- 
ed within  six  months  from  the  date  of  the  sale,  either  by  the  judg- 
ment debtor  or  his  successor  in  interest  in  the  whole  or  any  part  of 
the  property,  or  by  a  creditor  having  a  lien  by  judgment  or  mort- 
gage on  the  property  sold,  by  paying  to  the  purchaser  the  amount  of 
his  purchase  with  eighteen  per  cent,  thereon  in  addition.  The  pur- 
-chaser  is  entitled  to  the  rents,  issues,  and  profits. 

Sale  upon  foreclosure  of  mortgage  held  to  be  final.  No  re- 
demption. 


208  IDAHO.  [Part  7. 


CHAPTER  IX. 


PROCEEDINGS     SUPPLEMENTARY    TO    EXECUTION. 

After  return  of  execution  unsatisfied,  the  judgment  debtor  may 
be  required  to  answer  concerning  his  property. 

A  judgment  debtor  unjustly  refusing  to  apply  property  which  he 
has  to  the  satisfaction  of  a  judgment  against  him,  may  be  required 
to  appear  and  answer  concerning  the  same. 

After  the  issuing  or  return  of  execution,  or  upon  proof  by 
affidavit  or  otherwise,  to  the  satisfaction  of  the  judge,  that  any 
person  or  corporation  has  property  of  judgment  debtor,  or  is  in- 
debted to  him  in  an  amount  exceeding  fifty  dollars,  such  person  or 
corporation  may  be  required  to  appear  and  answer  concerning  same. 


CHAPTER  3£. 

SECUKITY  FOR  COSTS. 

When  the  plaintiff  in  an  action  resides  out  of  the  Territory,  or  is 
a  foreign  corporation,  security  for  costs  and  charges  that  may  be 
awarded  against  such  plaintiff  may  be  required  by  the  defendant. 
When  required,  all  proceedings  shall  be  stayed  until  an  undertak- 
ing, as  required,  be  filed  to  pay  all  costs,  not  exceeding  the  sum  of 
three  hundred  dollars,  with  two  sureties.  If  such  security  be  not 
given  within  thirty  days  from  the  service  of  notice  that  security  is 
required,  the  Court  may  order  the  action  dismissed. 


Chap.  11.]  IDAHO.  209 


i 

CHAPTER  XI. 


APPEALS  IN  GENERAL. 

An  appeal  may  be  taken:  1.  From  a  final  judgment  in  an 
action  or  special  proceeding,  commenced  in  the  Court  in  which  the 
judgment  is  rendered,  within  one  year  after  the  entry  of  judgment. 
But  an  exception  to  the  decision  or  verdict,  on  the  ground  that  it 
is  not  supported  by  the  evidence,  cannot  be  reviewed  on  appeal 
from  the  judgment,  unless  the  appeal  is  taken  within  sixty  days, 
after  the  rendition  of  the  judgment. 

2.  From  a  judgment  rendered  by  a  Probate  or  Justice's  Court:,. 
within  twenty-one  days  from  the  entry  of  "judgment. 

3.  From  an  order  granting  or  refusing  a  new  trial;  from  an. 
order  granting  or  dissolving  an  injunction  ;  from  an  order  refusing 
to  grant  or   dissolve  an  injunction ;    from  an  order  dissolving  or 
refusing  to   dissolve  an  attachment;  from   an   order  granting  or 
refusing  to  grant  a  change  of  the  place  of  trial ;  from  any  special 
order  made  after  final  judgment,  and  from  an  interlocutory  judg- 
ment in  actions  for  partition  of  real  property,  within  thirty  days 
after  the  order  or  interlocutory  judgment  is  made  and  entered  in 
the  minutes  of  the  Court,  or  filed  with  the  clerk. 

In  the  District  Court,  an  undertaking  must  be  filed  on  the  part 
of  the  appellant  by  at  least  two  sureties,  to  the  effect  that  the 
appellant  will  pay  all  the  damages  and  costs,  not  exceeding  three 
hundred  dollars :  or  that  sum  must  be  deposited  with  the  clerk. 

If  a  stay  of  proceedings  is  desired,  an  undertaking  in  double 
the  amount  of  the  judgment  and  costs  must  be  filed. 

In  the  Probate  and  Justices'  Courts,  appeals  are  allowed  in  all 
cases  where  the  demand,  exclusive  of  interest,  or  the  value  of  the 
property  in  controversy,  amounts  to  twenty-five  dollars. 

Appeals  in  Probate  and  Justices'  Courts  must  be  taken  in  twenty 
days  from  the  rendition  of  the  judgment. 
14 


210  IDAHO.  [Part  7. 


CHAPTER  XII. 

HOMESTEADS. 

The  homestead  consisting  of  a  quantity  of  land,  together  with 
the  dwelling  house  thereon  and  its  appurtenances,  not  exceeding 
in  value  the  sum  of  five  thousand  dollars,  to  be  selected  by  the 
husband  and  wife,  or  either  of  them,  or  other  head  of  a  family, 
shall  not  be  subject  to  forced  sale  in  execution,  or  any  final  process 
from  any  Court. 

The  person  or  persons  claiming  a  homestead  shall  do  so  by  writ- 
ten declaration,  setting  forth  that  they,  or  either  of  them,  are  mar- 
ried, or  if  not  married,  that  he  or  she  is  the  head  of  a  family ;  that 
they  or  either  of  them,  as  the  case  may  be,  are,  at  the  time  of 
making  such  declaration,  residing  with  their  family,  or  with  the 
person  under  their  care  and  maintenance,  on  the  premises,  particu- 
larly describing  said  premises,  and  it  is  their  intention  to  use  and 
claim  the  same  as  a  homestead,  which  declaration  shall  be  signed 
by  the  party  making  the  same,  and  acknowledged  and  recorded  in 
the  ofiice  of  the  county  recorder.  Such  exemption  shall  not  extend 
to  any  mechanic's,  laborer's  or  vendor's  lien,  lawfully  obtained,  nor 
to  a  mortgage  or  alienation  to  secure  the  purchase  money  or  pay 
the  purchase  money,  if  the  signature  of  the  wife  be  obtained  to  the 
same,  and  acknowledged  by  her  separate  and  apart  from  her  hus- 
band. 


CHAPTER   XIII. 

ESTATES  OF  DECEASED  PERSONS. 

Every  executor  or  administrator  shall,  immediately  after  his  ap- 
pointment, cause  to  be  published  in  some  newspaper  published  in 


Chap.  13.]  IDAHO.  211 

the  county — if  there  be  one  ;  if  not,  then  in  such  newspaper  as 
may  be  designated  by  the  Court — a  notice  to  the  creditors  of  the 
deceased  requiring  all  persons  having  claims  against  the  deceased 
to  exhibit  them,  with  the  necessary  vouchers,  within  ten  months 
after  the  first  publication  of  the  notice  to  such  executor  or  adminis- 
trator, at  the  place  of  his  residence  or  transaction  of  business,  to  be 
specified  in  the  notice. 

If  a  claim  be  not  presented  within  ten  months — unless  the  value 
of  the  estate  does  not  exceed  fifteen  hundred  dollars ;  in  which  case 
notice  to  creditors  shall  be  given  to  present  their  claims  within  four 
months — after  the  first  publication  of  the  notice,  it  shall  be  barred 
forever :  provided,  if  it  be  not  then  due,  or  if  it  be  contingent,  it 
may  be  presented  within  ten  months  after  it  shall  become  due  or 
absolute  :  and  provided  further,  that  when  it  shall  be  made  to 
appear  by  the  affidavit  of  the  claimant,  to  the  satisfaction  of  the 
executor  or  administrator  and  the  probate  judge,  that  the  claimant 
had  no  notice,  as  provided  in  this  act,  by  reason  of  absence  from 
this  Territory,  it  may  be  presented  at  any  time  before  a  decree  of 
distribution  is  entered. 

Every  claim  presented  to  the  administrator  shall  be  supported 
by  the  affidavit  of  the  claimant  that  the  amount  is  justly  due,  that 
no  payments  have  been  made  thereon,  and  that  there  are  no  off-sets 
to  the  same  to  the  knowledge  of  the  claimant  or  affiant :  provided) 
that  when  the  affidavit  is  made  by  any  other  person  than  the  claim- 
ant, he  shall  set  forth  in  the  affidavit  the  reason  it  is  not  made  by 
the  claimant.  The  oath  may  be  taken  before  any  officer  author- 
ized to  administer  oaths.  (If  the  claimant  is  a  non-resident,  the 
affidavit  must  be  made  before  a  judge  or  clerk  of  a  Court  having  a 
seal,  or  a  commissioner  for  Idaho  Territory.)  The  executor  or  ad- 
ministrator shall  also  require  satisfactory  vouchers  or  proofs  to  be 
produced  in  support  of  the  claim. 

The  amount  of  interest  shall  be  computed  and  included  in  the 
statement  of  the  claim,  and  the  rate  of  interest  determined ;  pro- 
vided, that  no  claim  which  shall  have  been  due  and  payable  thirty 
days  prior  to  the  death  of  the  deceased  shall  bear  greater  interest 
than  ten  per  cent,  per  annum  from  and  after  the  time  of  issuing 
letters. 


212  IDAHO.  [Part?. 

When  a  claim,  accompanied  by  the  affidavit  required,  has  been 
presented  to  the  executor  or  administrator  he  shall  endorse  thereon 
his  allowance  or  rejection,  Avith  the  day  and  date  thereof.  If  he 
allow  the  claim,  it  shall  be. presented  to  the  judge  for  his  approval, 
who  shall  in  the  same  manner  endorse  upon  it  his  allowance  or  re- 
jection. 

If  the  executor  or  administrator,  or  the  judge,  refuse  or  neglect 
to  endorse  such  allowance  or  rejection  for  ten  days  after  the  claim 
shall  have  been  presented  to  him,  such  refusal  or  neglect  shall  be 
deemed  a  rejection  :  if  allowed  and  approved,  it  must  be  filed  in  the 
Probate  Court  within  thirty  days. 

If  the  claim  be  founded  on  a  bond,  bill,  note,  or  other  instrument, 
the  original  instrument  shall  be  presented,  and  the  allowance  and 
approval,  or  rejection,  shall  be  endorsed  thereon  or  attached  thereto. 

If  the  claim,  or  any  part  thereof,  be  secured  by  a  mortgage  or 
other  lien,  such  mortgage  or  evidence  of  lien  shall  be  attached  to 
the  claim  and  filed  therewith,  unless  the  same  be  recorded  in  the  office 
of  the  recorder  of  the  county  in  which  the  land  lies  ;  in  which  case 
it  shall  be  sufficient  to  describe  the  mortgage  or  lien,  and  refer  to 
the  date,  volume  and  page  of  its  record. 

In  all  cases  the  claimant  may  withdraw  his  claim  from  file  on 
leaving  a  certified  copy,  with  a  receipt  endorsed  thereon,  by  him- 
self or  his  agent.  If  the  original  instrument  be  lost  or  destroyed, 
then,  in  lieu  thereof,  the  claimant  shall  be  required  to  file  his  affi- 
davit particularly  describing  such  instrument,  and  stating  the  loss 
or  destruction  thereof. 

When  a  claim  is  rejected,  either  by  the  executor  or  administra- 
tor or  probate  judge,  the  holder  shall  bring  suit  in  the  proper  Court 
against  the  executor  or  administrator,  within  three  months  after  the 
date  of  its  rejection,  if  it  be  then  due,  or  within  three  months  after 
it  becomes  due,  otherwise  the  claim  shall  be  forever  barred. 

No  claim  shall  be  allowed  which  is  barred  by  the  statute  of  limi- 
tations. 

The  executor,  administrator  or  probate  judge  may  allow  a  claim 
in  part,  and  if  the  claimant  fail  to  recover  a  greater  sum  he  is  al- 
lowed no  costs. 

The  debts  of  the  estate  are  paid  in  the  following  order : 

1.  Funeral  expenses. 


Chap.  14.]  IDAHO.  213 

2.  The  expenses  of  the  last  sickness. 

3.  Debts  having  preference  by  the  laws  of  the  United  States. 

4.  Judgments  rendered  against  the  deceased  in  his  lifetime,  and 
mortgages  in  the  order  of  their  date. 

5.  All  other  demands  against  the  estate. 

The  mortgages  in  preference  extend  only  to  the  proceeds  of  the 
property  mortgaged;  any  deficiency jnust  be  classified  and  paid  un- 
der the  fifth  head. 

Executors  and  administrators  should  make  a  settlement  of  the 
estate  at  the  expiration  of  one  year ;  except  where  the  value  of  the 
estate  does  not  exceed  fifteen  hundred  dollars,  the  Court  may  order 
the  estate  settled  in  six  months. 


CHAPTER  XIV. 

DEPOSITIONS. 

The  deposition  of  a  witness  in  this  Territory,  who  is  a  party  to 
the  action  or  proceeding  ;  or  who  resides  out  of  the  county,  or  is 
about  to  leave  the  -county  where  the  action  is  to  be  tried ;  or  is  too 
infirm  to  attend  the  trial ;  or  when  the  testimony  is  required  upon 
a  motion,  or  in  any  other  case  where  the  oral  examination  of  the 
witness  is  not  required,  may  be  taken  by  either  party,  before  any 
judge  or  clerk,  or  any  justice  of  the  peace,  or  notary  public  in  this 
Territory,  on  serving  upon  the  adverse  party  previous  notice  of 
the  time  and  place  of  the  examination,  together  with  a  copy  of  an 
affidavit,  showing  that  the  case  is  one  of  the  above  mentioned. 
Such  notice  shall  be  at  least  five  days,  and  in  addition  one  day  for 
every  twenty-five  miles  of  the  distance  of  the  place  of  examination 
from  the  residence  of  the  person  to  whom  the  notice  is  given,  un- 
less a  shorter  time  is  prescribed  by  the  judge. 


214  IDAHO.  [Part  7. 

The  deposition  of  a  witness  out  of  this  Territory  may  be  taken 
upon  commission  issued  from  the  Court,  under  the  seal  of  the 
Court,  upon  an  order  of  the  judge  or  Court,  or  probate  judge,  on 
the  application  of  either  party,  upon  five  days'  notice  to  the  other. 
If  issued  to  any  place  within  the  United  States,  it  may  be  directed 
to  a  person  agreed  upon  by  the  parties,  or  if  they  do  not  agree,  to 
any  judge  or  justice  of  the  peace,  or  commissioner  selected  by  the 
officer  issuing  it. 

If  issued  to  any  country  out  of  the  United  States,  it  may  be  di- 
rected to  a  minister,  ambassador,  consul,  vice  consul,  or  consular 
agent  of  the  United  States  in  such  country,  or  to  any  person  agreed 
on  by  the  parties. 

The  commission  shall  authorize  the  commissioner  to  administer 
an  oath  to  witness,  and  to  take  his  deposition  in  answer  to  the  in- 
terrogatories ;  or  when  the  examination  is  to  be  made  without  in- 
terrogatories, in  respect  to  the  matter  in  dispute ;  and  to  certify  the 
deposition  to  the  Court,  in  a  sealed  envelope,  directed  to  the  clerk 
or  other  person  designated  or  agreed  upon,  and  forward  to  him  by 
mail  or  other  usual  channel  of  conveyance. 


CHAPTER  XV. 

JUDICIAL  RECORDS. 

A  judicial  record  of  this  Territory  or  of  the  United  States  may 
be  proved  by  the  production  of  the  original  or  copy  thereof,  certi- 
fied by  the  clerk,  or  other  person  having  the  legal  custody  thereof, 
under  the  seal  of  the  Court,  to  be  a  true  copy  of  such  record. 

The  records  or  judicial  proceedings  of  the  Courts  of  any  State 
of  the  United  States  may  be  proved  or  admitted  in  the  Courts  of 
this  Territory,  by  the  attestation  of  the  clerk  and  the  seal  of  the 


Chap.  16.]  IDAHO.  215 

Court  annexed,  (if  there  be  a  seal)  together  with  the  certificate 
of  the  judge,  chief  justice  or  presiding  magistrate,  as  the  case 
may  be,  that  the  attestation  is  in  due  form. 

A  seal  of  a  Court  or  public  officer,  when  required,  may  be  im- 
pressed with  wax,  wafer  or  any  other  substance,  and  then  attached 
to  the  instrument  or  document ;  or  it  may  be  impressed  on  the  pa- 
per alone. 


CHAPTER  XVI. 

ACKNOWLEDGMENTS. 

Acknowledgments  are  required  in  all  conveyances  affecting  real 
estate.     The  same  certificate  required  as  in  California. 
May  be  taken  by  : 

1.  If  acknowledged  or  proved    within  this   Territory,  by  some 
judge  or  clerk  of  a  Court  having  a  seal;  or  some  notary  public,  re- 
corder or  justice  of  the  peace  of  the  proper  county. 

2.  If  acknowledged  or  proved  without  this  Territory,  and  within 
the  United  States,  .by  some  judge  or  clerk  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  having  a  seal,  or  by 
any  commissioner-  appointed  by  the  Governor  of  this  Territory. 

3.  If  acknowledged  or  proved  without  the  United  States,  by 
some  judge  or  clerk  of  any  Court,  (having  a  seal)  of  any  State, 
Kingdom  or  Empire,  or  by  a  notary  public  therein,  or  by  any  min- 
ister, commissioner,  or  consul  of  the  United  States  appointed  to 
reside  therein. 

The  act  concerning  conveyances  of  real  estate,  or  any  interest 
therein,  and  mortgages,  is  the  same  as  in  California. 


216  IDAHO.  [Part  7. 

CHAPTER  XVII. 

LIMITED  PARTNERSHIPS. 

Limited  partnerships  for  the  transaction  of  mercantile,  mechani- 
cal, mining  or  manufacturing  business  may  be  formed,  but  not  for 
the  purpose  of  banking  or  insurance. 

No  such  partnership  shall  be  deemed  to  have  been  formed  until 
a  certificate  which  shall  contain  the  name  or  firm  under  which  said 
partnership  is  to  be  conducted,  the  names  and  respective  places  of 
residence  of  all  the  general  and  special  partners,  distinguishing 
who  are  general,  and  who  are  special  partners,  the  amount  of  capi- 
tal which  each  special  partner  has  contributed  to  the  capital  stock , 
the  general  nature  of  the  business  to  be  transacted,  the  time  when 
the  partnership  is  to  commence  and  terminate,  shall  be  made  and 
severally  signed  and  acknowledged  by  ail  the  partners,  before  an 
officer  authorized  to  take  acknowledgment  of  deeds,  and  recorded 
in  the  office  of  the  recorder  of  the  county  in  which  the  principal 
place  of  business  of  the  partnership  is  located.  If  there  shall  be  a 
place  of  business  in  different  counties,  said  certificate  shall  be  re- 
corded in  each  of  such  counties  ;  a  copy  of  such  certificate  shall  be 
published  three  successive  weeks  in  the  county  where  the  principal 
place  of  business  is  located. 

Any  false  statement  in  the  certificate  makes  all  the  partners  lia- 
ble as  general  partners. 

The  special  partners  shall  not  be  personally  liable  for  any  debts 
-of  the  partnership,  except  their  names  be  used  in  said  firm  with 
'their  consent  or  privity,  or  shall  personally  make  any 'contract  re- 
specting the  concerns  of  the  partnership  with  any  person  except 
the  general  partner. 


Chap.  18.]  IDAHO.  217 


CHAPTER   XVIII. 

MARRIED  WOMEN. 

All  property  botli  real  and  personal,  of  the  wife  before  marriage, 
and  that  acquired  afterwards,  by  gift,  bequest,  devise  or  descent, 
is  her  separate  property,  and  all  the  husband's  is  his  separate  prop- 
erty. All  other  property  acquired  after  marriage  is  common  prop- 
erty. 

The  wife  is  required  to  make,  sign,  acknowledge,  and  have  re- 
corded a  complete  inventory  of  her  separate  property,  in  the  office 
of  the  recorder  of  the  county  where  the  property  is  situated.  The 
husband  has  the  management  and  control  of  the  wife's  separate 
property  during  marriage,  but  cannot  alienate  or  create  a  lien  or 
incumbrance  on  the  same,  except  by  instrument  signed  and  ac- 
knowledged by  both  husband  and  wife. 

The  District  Court  may,  on  application  of  the  wife,  appoint  a 
trustee  to  take  charge  of  and  manage  her  separate  property,  if  the 
husband  mismanages  it  or  commits  waste. 

The  husband  has  entire  control  of  common  property  and  his  own 
separate  property,  and  the  rents  and  profits  of  all  the  separate 
property  of  both  husband  and  wife  are  deemed  common  property, 
unless  expressly  provided  in  the  instrument  or  devise  to  the  con- 
trary. Upon  dissolution  of  the  community  by  death,  half  of  the 
common  property  goes  to  the  survivor  and  half  to  the  descendants,  if 
there  are  any ;  if  not,  all  to  the  survivor.  Upon  dissolution  by 
decree  of  Court,  the  common  property  must  be  equally  divided, 
unless  the  decree  is  granted  on  the  ground  of  adultery  or  extreme 
cruelty,  when  the  division  of  the  same  is  left  to  the  discretion  of 
the  Court  granting  the  decree. 

The  separate  property  of  the  husband  is  not  liable  for  the  debts 
of  the  wife  contracted  before  marriage,  but  the  separate  property 
of  the  wife  is  liable  for  all  such  debts. 


218  IDAHO.  [Part  7. 


CHAPTER   XIX. 


CORPORATIONS. 

There  is  a  general  law  for  the  formation  of  corporations,  by 
which  three  or  more  persons  may  form  a  corporation  by  filing  a 
certificate  in  writing  with  the  clerk  of  the  District  Court  of  the 
district  in  which  the  principal  place  of  business  of  the  corporation 
is  intended  to  be  located,  and  a  certified  copy  of  the  same,  under 
the  hand  of  the  clerk  and  the  seal  of  the  Court,  in  the  office  of 
the  secretary  of  the  Territory.  Said  certificate  must  state  the  cor- 
porate name  of  the  company,  the  object  for  which  it  is  formed,  amount 
of  capital  stock,  term  of  existence,  (not  to  exceed  fifty  years)  num- 
ber of  shares,  number  of  trustees  and  their  names  who  shall  man- 
age the  concerns  of  the  corporation  for  the  first  three  months,  and 
principal  place  of  business. 

The  total  amount  of  the  debts  of  the  corporation  shall  not,  at 
any  time,  exceed  the  amount  of  the  capital  stock  actually  paid  in  ; 
and  in  case  of  any  excess,  the  trustees  under  whose  administration 
the  same  may  have  happened,  except  those  who  have  caused  their 
dissent  therefrom  to  be  entered  at  large  on  the  minutes  of  the 
board  of  trustees  at  the  time,  and  except  those  not  present  at  the 
time  when  the  same  did  happen,  shall,  in  their  individual  and  pri- 
vate capacities,  be  liable  jointly  and  severally  to  the  said  corpora- 
tion, and  in  the  event  of  its  dissolution,  to  any  of  the  creditors 
thereof,  for  the  full  amount  of  such  excess. 

Each  stockholder  shall  be  individually  and  personally  Ijable  for 
his  proportion  of  all  the  debts  and  liabilities  of  the  corporation, 
contracted  or  incurred  during  the  time  that  he  was  a  stockholder, 
for  the  recovery  of  which  joint  or  several  actions  may  be  instituted  ; 
and  when  a  judgment  in  such  action  shall  be  recovered  against 
joint  stockholders,  the  Court  on  the  trial  thereof  shall  apportion  the 
amount  of  the  liability  of  each,  and  in  the  execution  thereof  no 
stockholder  shall  be  liable  beyond  his  proportion  so  ascertained. 


Chaps.  20,  21.]  IDAHO.  219 


CHAPTER  XX. 

CHATTEL  MORTGAGES 

May  be  given  upon  all  kinds  of  personal  property.  To  be  valid 
against  subsequent  incumbrancers,  or  purchasers  in  good  faith,  for 
a  valuable  consideration,  the  mortgage  must  show  the  residence, 
and  the  profession,  trade  or  occupation  of  both  the  mortgagor  and 
mortgagee,  and  each  of  the  parties  must  make  affidavit  thereto, 
that  the  mortgage  is  made  in  good  faith,  and  without  any  design  to 
hinder,  delay  or  defraud  creditors.  When  so  made  and  recorded 
in  the  office  of  the  recorder  of  deeds,  such  mortgage  is  good  against 
all  persons. 


CHAPTER  XXI. 


INTEREST  AND  USURY. 

Ten  per  cent,  per  annum  is  the  legal  rate  of  interest.  Parties 
may  agree  in  writing  for  any  rate  of  interest  not  exceeding  two 
per  cent,  per  month,  but  any  judgment  rendered  upon  such  con- 
tract bears  only  ten  per  cent,  per  annum.  The  penalty  for  a  greater 
rate  than  above  specified  is  three  times  the  amount  so  paid,  and  the 
person  receiving  a  greater  rate  than  two  per  cent,  per  month  is  lia- 
ble to  a  fine  of  three  hundred  dollars,  or  six  months'  imprisonment, 
or  both.  Interest  does  not  commence  to  run  on  open  accounts  un- 
til a  balance  is  struck  and  agreed  to,  or  a  settlement  is  had. 


220  IDAHO.  [Part  7. 


CHAPTER   XXII. 

AFFIDAVITS. 

An  affidavit  to  be  used  before  any  Court,  judge  or  officer  of  this 
Territory  may  be  taken  before  any  judge  or  clerk  of  any  Court,  or 
any  justice  of  the  peace  or  notary  public  in  this  Territory. 

An  affidavit  taken  in  another  State  or  Territory  of  the  United 
States,  to  be  used  in  this  Territory,  shall  be  taken  before  a  com- 
missioner appointed  by  the  Governor  of  this  Territory  to  take  affi- 
davits and  depositions  in  such  other  State  or  Territory,  or  before 
the  judge  of  a  Court  of  record  having  a  seal.  An  affidavit  taken 
in  a  foreign  country,  to  be  used  in  this  Territory,  shall  be  taken 
before  an  ambassador,  minister,  or  consul  of  the  United  States,  or 
before  any  judge  of  a  Court  of  record  having  a  seal  in  such  for- 
eign country,  or  before  a  commsssioner  of  deeds  appointed  by  the 
governor. 

When  an  affidavit  is  taken  before  a  judge  of  a  Court  in  another 
State  or  Territory,  or  a  foreign  country,  the  genuineness  of  the 
signature  of  the  judge,  the  existence  of  the  Court,  and  the  fact 
that  such  judge  is  a  member  thereof,  shall  be  certified  by  the  clerk 
of  the  Court  under  the  seal  thereof. 


CHAPTER   XXIII. 

SOLE  TRADERS. 

A  married  woman  may  become  a  sole  trader  by  the  judgment  of 
the  Probate  Court  of  the  county  in  which  she  has  resided  for  six 
months  next  preceding  the  application. 


Chap.  23.]  IDAHO.  221 

A  person  intending  to  make  application  to  become  a  sole  trader 
must  publish  notice  of  such  intention  in  a  newspaper  published  in 
the  county,  or  if  there  be  none,  then  in  a  newspaper  published  in 
an  adjoining  county,  for  four  successive  weeks. 

The  notice  must  specify  the  term  and  the  day  upon  which  appli- 
cation will  be  made,  the  nature  and  place  of  the  business  proposed 
to  be  conducted  by  her,  and  the  name  of  her  husband. 

Ten  days  prior  to  the  day  named  in  the  notice,  the  applicant 
must  file  a  verified  petition,  setting  forth  : 

1.  That  the  application  is  made  in  good  faith,  to  enable  the  ap- 
plicant to  support  herself,  and  others  dependent  upon  her,  giving 
their  names  and  relation. 

2.  The  fact  of  insufficient  support  from  her  husband,  and  the 
causes  thereof,  if  known. 

3.  Any  other  grounds  for  application,  which  are  good  causes  for 
a  divorce,  with  the  reason  why  a  divorce  is  not  sought ;  and, 

4.  The  nature  of  the  business  proposed  to  be  conducted,  and  the 
capital  to  be  invested  therein,  if  any,  and  the  sources  from  which 
it  is  derived. 

The  applicant  may  invest  in  the  business  proposed  to  be  conduct- 
ed a  sum  derived  from  the  community  property  or  of  the  separate 
property  of  the  husband,  not  exceeding  five  hundred  dollars. 

Any  creditor  of  the  husband  may  oppose  the  application  by  fil- 
ing in  the  Court  (prior  to  the  day  named  in  the  notice)  a  written 
opposition,  verified,  containing  either : 

1.  A  specific  denial  of  the  truth  of  any  material  allegation  of 
the  petition,  or  setting  forth — 

2.  That  the  application  is  made  for  the  purpose  of  defrauding 
the  opponent ;  or, 

3.  That  the  application  is  made  to  prevent,  or  will  prevent  him 
from  collecting  his  debt. 

Issues  of  fact  must  be  tried  as  in  other  cases.  If  the  facts  found 
sustain  the  petition,  the  Court  must  render  judgment,  authorizing 
the  applicant  to  carry  on  in  her  own  name  and  on  her  own  account, 
the  business  specified  in  the  notice  and  petition. 

The  sole  trader  must  make  and  file  with  the  clerk  of  the  Court 
an  affidavit,  in  the  following  form : 


222  IDAHO.  [Part  7. 

"  I,  A  B,  do,  ia  presence  of  Almighty  God,  solemnly  swear 
that  this  application  was  made  in  good  faith,  for  the  purpose  of 
enabling  me  to  support  myself,  (and  any  dependent,  such  as  hus- 
band, parent,  sister,  child,  or  the  like,  naming  them,  if  any)  and 
not  with  any  view  to  defraud,  delay  or  hinder  any  creditor  or  cred- 
itors of  my  husband ;  and  that,  of  the  moneys  so  to  be  used  by  me 
in  business,  not  over  five  hundred  dollars  have  come,  either  di- 
rectly or  indirectly,  from  my  husband  ;  so  help  me  God." 

A  certified  copy  of  the  decree,  with  this  oath  endorsed  thereon, 
must  be  recorded  in  the  office  of  the  recorder  of  the  county  where 
the  business  is  to  be  carried  on. 

A  married  woman  who  is  adjudged  a  sole  trader  is  responsible 
and  liable  for  the  maintenance  of  her  minor  children. 

The  husband  of  a  sole  trader  is  not  liable  for  any  debt  contract- 
ed by  her  in  the  course  of  her  sole  trader's  business,  unless  con- 
tracted upon  his  written  consent. 


PART  VIII. 


WYOMING    TERRITORY 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  E.  P.  JOHNSON,  CHEYENNE. 


CHAPTER  I. 


COURTS  AND  THEIR  JURISDICTION. 

The  Courts  provided  for  this  Territory  are  a  Supreme  Court, 
District  Courts,  Probate  Courts,  and  Justices  of  the  Peace. 

The  Supreme  Court  has  no  original  jurisdiction,  except  in  ha- 
beas corpus  cases.  It  exercises  an  appellate  jurisdiction,  princi- 
pally in  cases  coming  up  from  the  District  Courts. 

The  District  Courts  have  chancery  and  common  law  jurisdiction, 
and  jurisdiction  in  appeals  from  the  Justice  and  Probate  Courts. 

The  Prolate  Court  has  no  jurisdiction,  except  over  probate  busi- 
ness proper. 

The  Justices  of  the  Peace  have  no  jurisdiction  of  any  matter  in 
controversy  where  the  title  or  boundaries  of  land  may  be  in  dispute, 
or  where  the  debt  or  sum  claimed  shall  exceed  one  hundred  dollars. 


224  WYOMING.  [Part  8. 


CHAPTER   II. 

TERMS   OF   COURTS,   WHEN  AND   WHERE   HELD. 

The  Territory  is  divided  into  three  judicial  districts.  Laramie 
county  composes  the  first ;  Albany  and  Carbon  the  second ;  Sweet- 
water  and  Uinta  the  third.  Terms  of  Court  are  held  in  each,  as 
follows  : 

At  Cheyenne,  commencing  on  the  fourth  Monday  of  May  and 
first  Monday  of  November  of  each  year. 

At  Laramie,  commencing  on  the  first  Monday  of  February  and 
August  of  each  year. 

At  Rawlins,  commencing  on  the  first  Monday  of  April  and  sec- 
ond Monday  of  September  of  each  year. 

At  Areen  River,  on  the  first  Monday  of  May  and  October  of 
each  year. 

At  Evanston,  commencing  on  the  first  Monday  of  January  and 
July  of  each  year. 


CHAPTER  III. 

COMMENCEMENT   OF  ACTIONS,  TIME  TO  ANSWER, 
PLACE  OF  TRIAL. 

Actions  are  commenced  by  filing  in  the  office  of  the  clerk  of  the 
proper  Court  a  petition,  and  causing  a  summons  thereon  to  be  is- 
sued. The  summons  is  returnable  on  the  second  Monday  after  the 
day  of  its  date,  and  the  answer  or  demurrer  of  the  defendant  shall 
be  filed  on  or  before  the  third  Saturday  after  the  return  day  of  the 
summons. 


Chap.  4.]  WYOMING.  225 

Civil  actions  must  be  tried  in  the  county  in  which  they  are  com- 
menced, unless  upon  application  for  a  change  of  venue  based  upon 
sufficient  reasons  the  Court  orders  the  place  of  trial  to  be  changed ; 
and  in  such  case,  the  Court  must  send  the  cause  to  the  most  con- 
venient county. 


CHAPTER  IV. 

LIMITATION  OF  ACTIONS. 

Actions  for  the  recovery  of  real  property  can  only  be  brought 
within  twenty-one  years  after  the  cause  of  action  shall  have  ac- 
crued, except  actions  of  forcible  entry  and  detainer,  or  forcible  and 
unlawful  detention,  only  of  real  property,  which  must  be  commenced 
within  two  years  after  the  cause  of  action  shall  have  accrued. 

An  action  upon  a  specialty,  or  any  agreement,  contract  or  prom- 
ise in  writing,  or  on  a  foreign  judgment,  must  be  brought  within 
fifteen  years.  And  actions  upon  contract  not  in  writing,  express 
or  implied,  or  upon  a  liability  created  by  statute,  must  be  brought 
within  six  years  after  the  cause  of  action  shall  have  accrued. 

This  Territory  makes  no  discrimination  against  causes  of  action 
arising  outside  of  its  borders.  With  respect  to  limitation,  all  causes 
of  action  stand  on  the  same  footing,  without  reference  to  the  place 
of  contract  or  rendition  of  judgment. 

15 


226  WYOMING.  [Part  8. 


CHAPTER  V. 


ATTACHMENTS. 

The  creditor  in  a  civil  action  for  the  recovery  of  money  may,  at 
or  after  the  commencement  thereof,  by  filing  the  necessary  affidavit, 
have  an  attachment  against  the  property  of  the  debtor,  and  upon 
the  grounds  herein  stated  : 

1.  When  the  debtor,  or  one  of  several  debtors,  is  a  foreign  cor- 
poration, or  a  non-resident  of  this  Territory. 

2.  Has  absconded  with  the  intent  to  defraud  his  creditors. 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a 
summons. 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon 
him. 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the 
jurisdiction  of  the  Court,  with  the  intent  to  defraud  his  creditors. 

6.  Is  about  to  convert  his   property,   or  a  part   thereof,  into 
money,  for  the  purpose  of  placing  it  beyond  the  reach  of  his  credit- 
ors. 

7.  Has  property  or  rights  in  action  which  he  conceals. 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose 
of  his  property,  or  a  part  thereof,  with  the  intent  to  defraud  his 
creditors. 

9.  Fraudulently  contracted  the  debt  or  incurred  the  obligation 
for  which  suit  is  about  to  be  or  has  been  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the 
debtor  is  a  foreign  corporation,  or  a  non-resident  of  this  Territory, 
for  any  other  claim  than  a  debt  or  demand  arising  upon  contract, 
judgment,  or  decree. 

When  a  foreign  corporation  or  non-resident  is  defendant,  the 
writ  may  issue  without  an  undertaking.  In  all  other  cases  the 
writ  will  not  be  issued  by  the  clerk  of  the  Court  until  there  has 
been  executed  and  filed  in  his  office  an  undertaking,  with  sureties 


Chap.  6.]  WYOMING.  227 

approved  by  him,  in  double  the  amount  of  plaintiff's  claim,  to  the 
effect  that  plaintiff  shall  pay  all  damages  which  defendant  may  sus- 
tain by  reason  of  the  attachment,  if  the  writ  be  wrongfully  ob- 
tained. 


CHAPTER  VI. 

/ 

ARREST  IN  CIVIL  ACTIONS. 

No  person  can  be  imprisoned  for  debt  in  any  civil  action  on  mesne 
or  final  process,  unless  in  case  of  fraud.  An  order  for  the  arrest 
of  the  debtor  shall  be  made  by  the  clerk  of  the  Court  in  which  the 
action  is  brought,  when  there  is  filed  in  his  office  an  affidavit  of  the 
creditor,  or  his  authorized  agent  or  attorney,  made  before  any  judge 
of  any  Court  of  the  Territory,  or  clerk  thereof,  or  justice  of  the 
peace,  stating  the  nature  of  the  creditor's  claim,  that  it  is  just,  and 
the  amount  thereof  as  nearly  as  may  be,  and  establishing  one  or 
more  of  the  following  particulars : 

1.  That  the  debtor  has  removed,  or  begun  to  remove,  any  of  his 
property  out  of  the  jurisdiction  of  the  Court,  with  intent  to  defraud 
his  creditors. 

2.  That  he  has  begun  to  convert  his  property,  or  a  part  thereof, 
into  money,  for  the  purpose  of  placing  it  beyond  the  reach  of  his 
creditors. 

3.  That  he  has  property  or  rights  of  action  which  he  fraudulently 
conceals. 

4.  That  he  has  assigned,  removed,  or  disposed  of,  or  has  begun 
to  dispose  of  his  property,  or  a  part  thereof,  with  intent  to  defraud 
his  creditors. 

5.  That  he  fraudulently  contracted  the  debt  or  incurred  the  ob- 
ligation for  which  suit  is  about  to  be  or  has  been  brought. 

The  affidavit  must  also  contain  a  statement  of  the  facts  claimed 


228  WYOMING.  [Part  8. 

to  justify  the  belief  in  the  existence  of  one  or  more  of  the  above  par- 
ticulars. The  creditor,  before  the  issuing  of  the  order  of  arrest, 
must  give  bond  in  double  the  amount  of  the  claim  stated  in  the  affi- 
davit. The  death  of  a  person  under  arrest  does  not  satisfy  the 
judgment. 


CHAPTER  VII. 

* 

JUDGMENT  LIENS. 

A  judgment  is  a  lien  on  the  lands  and  tenements  of  a  judgment 
debtor  from  the  first  day  of  the  term  at  which  it  is  rendered ;  but 
judgments  by  confession  and  judgments  rendered  at  the  same  term 
at  which  the  action  is  commenced  bind  such  lands  only  from  the  date 
of  their  rendition. 

If  execution  is  not  sued  out  within  five  years  from  the  date  of 
the  rendition  of  judgment,  such  judgment  becomes  dormant,  and 
ceases  to  operate  as  a  lien.  The  judgment  may  subsequently  be 
revived,  but  the  lien  is  not  restored,  except  from  the  date  of  revivor. 


CHAPTER  VIII. 


EXECUTIONS,  SALE,  REDEMPTION  AND  EXEMPTIONS, 

Executions  are  of  three  kinds  : 

1.  Against  the  property  of  the  judgment  debtor. 

2.  Against  his  person. 


Chap.  8.]  WYOMING.  229 

3.  For  the  delivery  of  the  possession  of  real  property,  with 
damages  for  witholding  the  same  and  costs. 

The  officer  having  the  writ  must  levy  first  on  the  goods  and 
chattels  of  the  debtor,  but  if  no  goods  be  found,  he  shall  endorse 
on  the  writ  "no  goods,"  and  forthwith  levy  the  writ  of  execution 
upon  the  lands  and  tenements  of  the  debtor  liable  to  satisfy  the 
judgment. 

The  officer  may  sell  goods  and  chattels  seized,  by  first  publishing 
notice  of  the  time  and  place  of  sale,  for  a  period  of  ten  days. 
Notice  of  the  sale  of  lands  and  tenements  must  be  published  thirty 
days  prior  to  the  sale. 

There  is  now  in  this  Territory  no  statute  providing  for  the  re- 
demption of  property,  either  real  or  personal,  sold  on  execution. 

The  exemptions  from  levy,  or  seizure,  are  a  homestead  not  ex- 
ceeding in  value  $1500,  so  long  as  it  is  actually  occupied  as  such 
by  the  debtor  and  his  family,  the  value  to  be  ascertained  by  ap- 
praisers. 

So,  too,  the  following  personal  property,  when  owned  by  the  head 
of  a  family  who  is  residing  with  the  same :  Furniture,  bedding, 
and  provisions,  and  such  other  articles  as  the  debtor  may  select, 
not  exceeding  in  value  $500. 

There  is  also  exempt  the  necessary  wearing  apparel  of  every 
person,  not  exceeding  in  value  850. 

The  tools,  team,  and  implements,  or  stock  in  trade  of  any 
mechanic,  miner  or  other  person,  used  and  kept  for  the  purpose  of 
carrying  on  hi&  trade  or  business,  not  exceeding  in  value  $300. 
Also  the  library,  instruments  and  implements  of  any  professional 
man,  not  exceeding  in  value  $300. 

There  is  no  exemption  in  favor  of  a  person  not  an  actual  resident 
of  the  Territory,  nor  one  about  to  remove  or  abscond  therefrom. 
And  no  article  of  property  is  exempt  from  attachment  or  sale, 
upon  execution  for  the  purchase  money  of  said  article  of  property. 


230  WYOMING.  [Part  8. 


CHAPTER  IX. 

PROCEEDINGS  IN  AID  OF  EXECUTIONS. 

Proceedings  in  aid  of  executions  may  be  had,  in  which  the 
debtor  may  be  examined  and  compelled  to  disclose  and  appropriate 
to  the  payment  of  the  judgment  any  property  which  he  may  have 
unjustly  refused  to  apply  to  that  purpose. 

A  receiver  may  be  appointed  to  take  and  dispose  of  such  prop- 
erty of  the  judgment  debtor  that  may  be  unearthed  on  examination, 
either  legal  or  equitable,  and  appropriate  the  proceeds  to  the  pay- 
ment of  the  judgment. 


CHAPTER   X. 


SECURITY  FOR  COSTS.     • 

In  all  cases  in  which  the  plaintiff  is  a  resident  of  the  county  in 
which  the  action  is  brought,  he  must  furnish  security  for  costs  be- 
fore commencing  such  action. 


Chaps.  11,  12.]  WYOMING.  231 


CHAPTER   XI. 
APPEALS. 

In  actions  at  law,  final  judgments  and  orders  may  be  reviewed  on 
writ  of  error,  or  petition  in  error  sued  out  any  time  within  three 
years  after  rendition. 

In  chancery  cases,  review  may  be  had  by  appeal,  if  the  appeal 
is  perfected  within  thirty  days  after  the  decree  complained  of. 

Where  the  judgment  or  decree  sought  to  be  reviewed  is  for  the 
payment  of  money,  security  must  be  given  in  double  the  amount  of 
the  decree  or  judgment.  In  other  cases  the  amount  of  security  is 
fixed  by  the  Court. 


CHAPTER   XII. 

ESTATES  OF  DECEASED  PERSONS. 

Estates  of  deceased  persons  are  settled  in  the  Probate  Courts 
through  the  usual  means  of  executors  and  administrators. 

Claims  against  the  estate  must  be  presented  within  one  year  after 
the  granting  of  letters  testamentary  or  of  administration,  and  if  not 
so  presented,  are  forever  barred. 

Every  executor  and  administrator  must  exhibit  a  statement  of 
the  accounts  of  his  administration  for  settlement,  with  proper 
vouchers,  to  the  Probate  Court,  at  its  first  term  after  the  end  of  six 
months  from  the  date  of  his  letters,  and  at  the  corresponding  term 
of  Court  every  six  months  until  administration  be  completed. 


232  WYOMING.  [Part  8. 

t 

CHAPTER  XIII. 

/ 

DESCENTS  AND  DISTRIBUTION  OF  PROPERTY. 

1.  Whenever  any  person  having  title  to  any  real  estate,  or  prop- 
erty having  the  nature  or  legal  character  of  real  estate,  or  personal 
estate  .undisposed  or  otherwise  limited  by  marriage  settlement,  shall 
die  intestate  as  to  such  estate,  it  shall  descend  and  be  distributed 
in  parcenary  to  his  kindred,  male  and  female,  subject  to  the  pay- 
ment of  his  debts,  in  the  following  course  and  manner,  namely  :  If 
such  intestate  leave  a  husband  or  wife  and  children,  or  the  de- 
scendants of  any  children,  him  or  her  surviving,  one-half  of  such 
estate  shall  descend  to  such  surviving  husband  or  wife,  and  the  resi- 
due thereof  to  such  surviving  children  and  descendants  of  children 
as  hereinafter  limited ;  if  such  intestate  leave  a  husband  or  wife 
and  no  child  nor  descendants  of  any  child,  then  the  real  and  per- 
sonal estate  of  such  intestate  shall  descend  as  follows,  to  wit : 
Three-fourths  thereof  to  such  surviving  husband  or  wife,  and  one- 
fourth  thereof  to  the  father  and  mother  of  the  intestate,  or  the  sur- 
vivor of  them.  Provided,  That  if  the  estate  of  such  intestate, 
real  and  personal,  does  not  exceed  in  value  the  sum  of  ten  thousand 
dollars,  then  the  whole  thereof  shall  descend  to  and  vest  in  the 
surviving  husband  or  wife  as  his  or  her  absolute  estate,  subject  to 
the  payment  of  debts  as  aforesaid.  Dower  and  the  tenancy  by  the 
courtesy  are  abolished,  and  neither  husband  nor  wife  shall  have 
any  share  in  the  estate  of  the  other  save  as  herein  provided.  Ex- 
cept in  cases  above  enumerated,  the  estate  of  any  intestate  shall 
descend  and  be  distributed  as  follows: 

First. — To  his  children  surviving,  and  the  descendants  of  his 
children  who  are  dead,  (the  descendants  collectively  taking  the 
share  their  parent  would  have  taken  if  living). 

Second. — If  there  be  no  children  nor  their  descendants,  then  to 
his  father,  mother,  brothers  and  sisters,  and  to  the  descendants  of 
brothers  and  sisters  who  are  dead,  (the  descendants  collectively  tak- 


Chap.  13.]  WYOMING.  233 

ing  the  share  their  parent  would  have  taken  if  living)  in  equal 
parts. 

Third. — If  there  be  no  children  nor  their  descendants,  nor  fa- 
ther, mother,  brothers,  sisters,  nor  descendants  of  deceased  brothers 
or  sisters,  nor  husband  nor  wife  living,  then  to  the  grandfather, 
grandmother,  uncles,  aunts  and  their  descendants,  (the  descend- 
ants taking  collectively  the  share  of  their  immediate  ancestors)  in 
equal  parts. 

2.  All  posthumous  children  or  descendants  of  the  intestate  shall 
inherit  in  like  manner  as  if  born  in  the  lifetime  of  the  intestate ; 
but  no  right  of  inheritance  shall  accrue  to  any  person  other  than 
the  children  or  descendants  of  the  intestate,  unless  they  are  in  be- 
ing, and  capable  in  law  of  taking  as  heirs  at  the  time  of  the  intes- 
tate's death. 

3.  Children,  and  descendants  of  children  of  the  half-blood,  shall 
inherit  the  same  as  children  and  descendants-of  the  whole  blood, 
but  collateral  relations  of  the  half-blood  shall  inherit  only  half  the 
measure  of  collateral  relatives  of  the  whole  blood,  if  there  be  any 
of  the  last  named  class  living. 

.  4.  Where  any  of  the  children  of  the  intestate  shall  have  re- 
ceived in  his  lifetime  any  real  or  personal  estate,  by  way  of  ad- 
vancement, and  the  other  heirs  desire  it  to  be  charged  to  him,  the 
probate  judge  shall  cite  the  parties  to  appear  before  him,  shall  hear 
proof  upon  the  subject,  and  shall  determine  the  amount  of  such  ad- 
vancement or  advancements  to  be  thus  charged. 

5.  The  maintenance,  education  or  supply  of  money  to  a  child 
under  the  age  of  majority,  without  any  view  to  apportion  or  settle- 
ment in  life,  shall  not  be  deemed  an  advancement  under  section 
four. 

6.  The  alienage  of  the  descendants  shall  not  invalidate  any  title 
to  real  estate  which  shall  descend  from  him  or  her. 

7.  Illegitimate  children  shall  inherit  the  same  as  those  born  in 
wedlock,  if  the  parents  subsequently  intermarry,  and  such  children 
be  recognized  after  such  intermarriage  by  the  father  to  be  his. 
Illegitimate  children  inherit  from  the  mother,  and  the  mother  from 
the  children. 

8.  Divorces  of  husband  and  wife  shall  not  affect  the  right  of 
children  personally  together,  to  inherit  their  property. 


234  WYOMING.  [Part  8. 

9.  Probate  judges  and  administrators  of  the  estates  of  persons 
dying  intestate  within  this  Territory,  shall  apportion  and  distribute 
estates  of  intestates  according  to  this  Act. 

10.  The  rule  of  descent  of  all  property  of  whatsoever  kind  or 
nature,  real  or  personal,  of  any  bastard  or  illegitimate  person,  dy- 
ing intestate  in  this  Territory,  and  leaving  property  and  effects 
therein,  shall  be  as  follows,  to  wit :   On  the  death  of  any  such  per- 
son intestate,  his  or  her  property,  estate  and  effects  shall  descend 
to  and  vest  in  the  widow,  or  the  surviving  husband  and  children,  as 
the  property  and  effects  of  other  persons  in  like  cases.      In  case  of 
the  death  of  any  such  illegitimate  person  leaving  no  children,  or  de- 
scendants of  a  child  or  children,  then  the  whole  property  and  estate, 
rights,  credits  and  effects  shall  descend  to  and  vest  in  the  widow  or 
surviving  husband.    In  case  of  any  such  illegitimate  person  leaving 
no  widow,  surviving  husband,  or  descendants,  then  the  property  and 
estate  of  such  person  shall  descend  to  and  vest  in  the  mother  and 
her  children,  and  their  descendants  ;  to  the  mother  one-half,  and 
the  other  half  to  be  equally  divided  between  her  children  and  their 
descendants,  the  descendants  of  a  child  taking  the  share  of  their 
deceased  parent  or  ancestors.      In  case  of  the  death  of  any  such 
illegitimate  person  leaving  no  heirs  as  above  provided,  then  the 
property  and  effects,  of  whatsoever  kind  or  nature,  shall  pass  to  and 
vest  in  the  next  of  kin  to  the  mother  of  such  illegitimate  person,  in 
the  same  manner  as  the  estate  of  a  legitimate  person  would,  by  law, 
pass  to  the  next  of  kin. 

11.  If  any  decedent  leaves  a  widow  residing  in  this  Territory,  in 
all  cases  she  shall  be  allowed  to  have  and  retain  as  her  sole  and 
separate  property  one  bed  and  bedding,  wearing  apparel  for  herself 
and  family,  two  cows,  her  saddle  and  bridle,  one  horse,  household 
furniture  for  herself  and  family,  and  also  the  same  amount  and  spe- 
cies of  property,  real  and  personal,  as  is  or  may  be  by  law  exempt 
from  execution.     Said  property  shall  be  retained  by  the  widow, 
and  set  apart  to  her  by  the  executor  or  administrator,  and  shall  in 
no  case  be  subject  to  the  payment  of  debts  of  the  deceased. 

12.  When  an  inventory  shall  have  been  made  of  the  personal  es- 
tate of  any  testator  or  intestate,  the  widow  may  relinquish  her 
right  to  all  of  the  specified  articles  of  property  allowed  to  her  by 


Chap.  14.]  WYOMING.  235 

the  preceding  section  ;  or  in  case  the  intestate  shall  not  leave  any 
or  all  of  the  articles  specified,  in  either  case  she  shall  be  entitled  to 
other  property,  or  the  value  of  the  same  in  money  ;  and  it  shall  be 
the  duty  of  the  administrator  or  Court  of  probate  to  allow  the  value 
of  the  articles  specified  by  law  to  be  set  apart  to  the  widow  of  any 
intestate,  to  be  allowed  her  in  money,  or  other  personal  property,  at 
her  election. 

13.  The  right  of  a  widow  to  her  separate  property  shall  in  no 
case  be  affected  by  her  renouncing,  or  failing  to  renounce,  the  bene- 
fit of  the  provisions  made  for  her  in  the  will  of  her  husband,  or  other- 
wise. 


CHAPTER  XIV. 

DEPOSITIONS. 

No  person  is  disqualified  as  a  witness  by  reason  of  his  interest 
in  the  event  of  suit. 

Depositions  may  be  taken  as  soon  as  a  case  is  commenced,  and 
may  be  used  when  Ijhe  witness  does  not  reside  in  the  county  where 
the  action  is  pending,  or  is  absent  therefrom ;  or  when  from  age  or 
infirmity  or  imprisonment  of  the  witness  he  is  unable  to  attend 
Court,  or  is  dead ;  or  when  in  any  case  oral  examination  is  not 
required  ;  or  in  cases  of  appeal  from  Justices'  Courts. 

They  may  be  taken  in  or  out  of  the  Territory,  before  a  justice 
of  the  peace,  chancellor,  or  judge  of  any  Court  of  record,  notary 
public,  mayor,  or  chief  magistrate  of  any  city  or  town  corporate, 
a  commissioner  appointed  by  the  Governor  of  the  Territory,  or  any 
person  authorized  by  special  commission  from  the  Territory. 

They  may  be  taken  in  narrative  form  or  by  questions  and 
answers,  except  in  chancery  cases,  in  which  they  must  be  taken  on 
interrogatories  and  cross-interrogatories,  settled  before  issuing  the 


236  WYOMING.  [Part  8. 

commission.     In  law  cases  they  may  be  taken  on  notice  or   com- 
mission issued  by  the  clerk  of  the  Court. 


CHAPTER   XV. 

JUDICIAL  KECORDS. 

The  judicial  records  of  another  State  must  be  proven  in  accord- 
ance with  the  provisions  of  the  Act  of  Congress,  except  judgments 
of  justices  of  the  peace,  whose  proceedings  may  be  authenticated 
by  his  own  certificate,  supported  by  the  official  certificate  of  the 
clerk  of  any  Court  of  record  in  the  county  in  which  such  justice 
resides,  that  his  signature  is  genuine,  and  that  he  is  an  acting 
justice  of  the  peace  of  that  county. 


CHAPTER   XVI. 

ACKNOWLEDGMENTS. 

Deeds  or  mortgages,  executed  within  this  Territory,  of  lands  or 
any  interest  in  lands,  shall  be  executed  in  the  presence  of  two 
witnesses,  who  shall  subscribe  their  names  to  the  same  as  such  ;  and 
the  person  executing  such  deeds  or  mortgages  may  acknowledge 
the  execution  thereof  before  any  judge  or  commissioner  of  a  Court 
of  record,  or  before  any  notary  public  or  justice  of  the  peace 


Chap.  17.]  WYOMING.  237 

within  the  Territory ;  and  the  officer  taking  such  acknowledgment 
shall  indorse  thereon  a  certificate  of  the  acknowledgment  thereof, 
and  the  true  date  of  making  the  same,  under  his  hand,  and  seal  of 
office  if  there  be  one. 

If  any  such  deed  or  mortgage  shall  be  executed  in  any  other 
State,  Territory  or  District  of  the  United  States,  such  deed  or 
mortgage  may  be  executed  according  to  the  laws  of  such  State, 
Territory  or  District,  by  any  officer  authorized  by  the  laws  of  such 
State,  Territory  or  District  to  take  the  acknowledgment  of  deeds 
or  mortgages  therein,  or  before  any  commissioner  appointed  by  the 
Governor  of  this  Territory  for  such  purposes. 

In  the  cases  provided  for  in  the  last  preceding  section,  unless 
the  acknowledgment  be  taken  before  a  commissioner  appointed  by 
the  Governor  of  this  Territory  for  that  purpose,  such  deed  or 
mortgage  shall  have  attached  thereto  a  certificate  of  the  clerk  or 
other  proper  certifying  officer  of  the  Court  of  record  of  the  county 
or  district  within  which  such  acknowledgment  was  taken,  under  the 
seal  of  his  office,  that  the  person  whose  name  is  subscribed  to  the 
certificate  of  acknowledgment  was,  at  the  date  thereof,  such  officer 
as  he  is  therein  represented  to  be,  that  he  knows  the  signature  of 
such  person  subscribed  thereto  to  be  genuine,  and  that  the  deed  or 
mortgage  is  executed  and  acknowledged  according  to  the  laws  of 
such  State,  Territory,  or  District. 


CHAPTER  XVII. 

LIMITED   PARTNERSHIPS. 

There   is  no   statute   concerning  limited   partnerships   in  the 
Territory. 


238  WYOMING.  [Part  8. 


CHAPTER   XVIII. 

MARRIED  WOMEN. 

• 

Married  women  retain  their  property,  real  and  personal,  which 
they  had  at  marriage,  or  which  they  acquire  thereafter  from  any 
person  other  than  their  husband,  in  good  faith,  as  their  own,  free 
from  the  husband's  control,  and  free  from  liability  for  his  debts. 
They  may  bargain,  sell  and  convey  personal  property  as  if  they 
were  sole  ;  may  make  a  will,  be  sued  and  sue  as  if  they  were 
sole  ;  may  carry  on  any  trade  or  business  on  their  own  account. 
The  husband  is  not  liable  for  the  debts  of  the  wife  contracted  before 
marriage.  When  judgment  is  rendered  against  both  for  the  tort 
of  the  wife,  the  judgment  must  be  satisfied  first  out  of  the  property 
of  the  wife,  if  she  have  any. 


CHAPTER   XIX. 

CHATTEL  MORTGAGES. 

Chattel  mortgages  must  be  executed  in  the  presence  of  two 
witnesses,  and  acknowledged  before  some  one  authorized  to  take 
acknowledgment  of  deeds,  and  filed  in  the  office  of  the  county  re- 
corder of  the  county  where  the  property  is  ;  and  it  then  becomes  a 
lien  on  the  property  described  therein  for  one  year ;  and  if  it  so 
provide,  the  property  mortgaged  may  be  left  in  possession  of  the 
mortgagor.  All  goods  and  chattels  may  be  mortgaged. 


Chap.  20.]  WYOMING.  239 


CHAPTER  XX. 

INTEREST   AND  USURY. 

The  legal  rate  of  interest  is  twelve  per  cent,  per  annum  ;  but 
any  rate  that  may  be  agreed  on  is  legal.  Judgments  draw  twelve 
per  cent,  from  the  date  of  their  rendition. 


PART  IX. 


MONTANA  TERRITORY 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  W.  E.  CULLEtf,  HELENA. 

CHAPTER  I. 

COURTS,  THEIR  JURISDICTION  AND   TERMS: 

The  Courts  of  the  Territory  are  a  Supreme  Court,  District 
Courts,  Probate  Court,  and  Justices  of  the  Peace. 

The  Supreme  Court  has  appellate  jurisdiction  only. 

The  District  Courts  have  original  jurisdiction  of  all  civil  cases 
where  the  amount  in  controversy  exceeds  fifty  dollars,  and  of  all 
felonies  ;  also  appellate  jurisdiction  from  the  Probate  and  Justices' 
Courts. 

Jhe  Probate  Court,  in  addition  to  probate  matters,  has  jurisdic- 
tion in  civil  actions  to  the  amount  of  five  hundred  dollars,  except 
where  the  title  or  right  to  the  possession  of  land  is  in  question,  and 
in  chancery  and  divorce  cases.  The  Probate  Court  also  has  juris- 
diction of  such  criminal  cases  arising  under  the  laws  of  the  Terri- 
tory as  do  not  require  the  intervention  of  a  grand  jury. 

Justices  of  the  Peace  have  jurisdiction  where  the  title  of  land  is 
not  in  dispute,  and  where  the  debt  or  sum  claimed  does  not  exceed 
one  hundred  dollars. 

The  District  Court,  when  sitting  at  Helena,  Deer  Lodge,  and 

16 


242 


MONTANA. 


[Part  9. 


Bozeman,  has  the  same  jurisdiction  as  the  Circuit  and  District 
Courts  of  the  United  States,  and  the  first  six  days  of  each  term  at 
said  places  are  appropriated  to  the  trial  of  causes  arising  under  the 
constitution  and  laws  of  the  United  States. 

TERMS  OF  DISTRICT  COURTS,  1876. 


COUNTY. 

COUNTY  SEAT. 

DIST. 

WHEN  HELD. 

Beaverhead..  . 

Bannack 

2d 

First  IVTonday  in  June  second  Monday  in  October. 

Deer  Lodge.  . 
Gallatin  

Deer  Lodge  
Bozeman  

2d... 
1st  .. 

Second  Monday  in  April,  first  Monday  in  September. 
First  Monday  in  May,  second  Monday  in  October. 

Jefferson  

Radersburg.  .  .  . 

3d... 

First  Monday  in  April,  first  Monday  in  October. 

Madison  ...   . 
Meagher  

Virginia  City.. 
Diamond  City.. 

1st.. 
3d... 

Third  Monday  in  March,  third  Monday  in  September. 
Fourth  Monday  in  May,  fourth  Monday  in  October. 

Meissoula  .  .   . 

Meissoula  

2d... 

Fourth  Monday  in  June,  Second  Monday  in  November. 

Lewis  &  Clark. 

Helena  

3d.... 

First  Monday  in  March,  second  Monday  in  September, 

and  first  Monday  in  November. 

Terms  of  the  Supreme  Court  are  held  at  the  capital,  Helena, 
on  first  Monday  in  January  and  second  Monday  in  August. 


CHAPTER  II. 

TIME  ALLOWED  DEFENDANT   TO  ANSWER— PLACE 
OF  TRIAL  OF  CIVIL  ACTIONS. 

TIME  ALLOWED  DEFENDANT  TO  ANSWER.  , 

Ten  days  if  served  in  the  county,  twenty  days  if  served  outside 
the  county  but  in  the  district ;  forty  days  in  all  other  cases. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 
Actions  for  the  recovery  of  real  estate,  or  for  injuries  thereto, 


Chap.  3.]  MONTANA.  243 

for  partition  thereof,  or  for  foreclosure  of  mortgage  thereon,  must 
be  tried  in  the  county  where  the  same  is  situated. 

Actions  for  the  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute,  or  against  a  public  officer,  must  be  tried  in  the  county 
where  the  cause  arose. 

In  all  other  cases  the  action  is  to  be  tried  in  the  county  in 
which  the  defendant  may  reside,  or  in  the  county  where  the  plain- 
tiff resides  and  the  defendant  may  be  found. 


CHAPTER  III. 
LIMITATION  OF  ACTIONS. 

Upon  a  judgment  or  decree  of  a  United  States  Court,  or  of  any 
State  or  Territory,  ten  years. 

Upon  any  contract,  obligation  or  liability,  founded  upon  an  in- 
strument of  writing,  ten  years. 

Actions  for  waste  or  trespass  upon  real  property  ;  for  a  liability 
created  by  statute,  other  than  a  penalty  or  forfeiture  ;  for  taking, 
detaining  or  injuring  goods  or  chattels,  and  for  relief  on  the  ground 
of  fraud,  must  be  commenced  within  three  years. 

Actions  against  a  sheriff,  coroner  or  constable,  for  any  act  in  his 
official  capacity,  must  be  commenced  within  two  years. 

Actions  upon  an  account,  contract,  obligation  or  liability  not 
grounded  upon  an  instrument  of  writing,  must  be  commenced  with- 
in five  years. 

An  action  for  a  penalty  or  forfeiture  given  by  statute,  or  for 
libel,  slander,  assault,  battery  or  false  imprisonment,  must  be  com- 
menced within  two  years. 

Actions  for  relief  not  provided  for,  as  above,  must  be  com- 
menced within  three  years  after  the  cause  of  action  accrued. 


244  MONTANA.  [Part  9. 

If  the  party  against  whom  the  action  accrues  is  out  of  the 
Territory  at  the  time,  the  statute  does  not  run  until  his  return,  and 
if,  after  the  action  has  accrued,  he  depart  from  the  Territory,  the 
time  of  his  absence  is  not  a  part  of  the  time  limited  for  the  com- 
mencement of  an  action.  A  part  payment  revives  a  debt  which 
has  been  barred.  No  acknowledgment  or  promise  is  sufficient  to 
take  a  case  out  of  the  statute,  unless  it  be  in  writing  and  signed  by 
the  party  to  be  charged.  A  cause  of  action  arising  in  any  other 
State  or  Territory,  and  barred  by  the  laws  of  such  State  or  Terri- 
tory, cannot  be  maintained  here. 


CHAPTER   IV. 

ATTACHMENTS— ARRESTS  IN  CIVIL  CASES. 

ATTACHMENTS. 

An  attachment  will  issue  in  all  cases  where  an  affidavit  is  made 
by  or  on  behalf  of  the  plaintiff,  that  the  defendant  is  indebted  to 
the  plaintiff  upon  a  contract  for  the  payment  of  money,  gold  dust 
or  other  property  then  due,  which  is  not  secured  by  a  mortgage, 
lien  or  pledge  upon  either  real  or  personal  property ;  and  upon 
giving  an  undertaking  in  double  the  amount  of  the  debt, sought  to 
be  recovered,  if  the  same  does  not  exceed  in  amount  $1000,  and 
in  the  amount  sought  to  be  recovered  if  over  $  1000,  conditioned 
that  the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  de- 
fendant, and  all  damages  which  he  may  sustain  by  reason  of  such  at- 
tachment, if  the  defendant  recovers  judgment,  or  the  Court  finally 
decides  that  the  plaintiff  was  not  entitled  to  an  attachment. 


Chap.  5.]  MONTANA.  245 

ARRESTS  IN  CIVIL  CASES. 

Arrest  may  be  had  in  all  cases  of  fraud,  or  when  the  action  is 
for  willful  injury  to  person  or  character,  or  to  property,  knowing  the 
property  to  belong  to  another. 


CHAPTER  V. 

JUDGMENT  LIENS,  EXECUTIONS,  EXEMPTIONS,  SALE 
AND  REDEMPTION. 

A  judgment  rendered  by  the  District  Court  is  a  lien  upon  all  the 
real  estate  of  defendant  in  the  county  wherein  it  is  docketed,  and 
is  such  lien  for  the  period  of  two  years. 

Execution  may  be  issued  at  any  time  within  five  years  after  the 
entry  of  the  judgment.  Executions  may  be  issued  to  several 
counties  at  the  same  time. 

The  following  articles  are  exempt  from  execution :  wearing  ap- 
parel of  judgment  debtor  and  family,  also  all  chairs,  tables,  desks, 
to  the  value  of  $100;  all  necessary  household  arid  kitchen  furni- 
ture, including  stoves,  stovepipes  and  stove  furniture,  beds,  bedding 
and  provisions,  and  fuel  actually  provided  for  use  sufficient  for  one 
month ;  and  also  one  horse,  two  cows  with  their  calves,  two  swine 
and  fifty  domestic  fowls ;  one  sewing  machine  not  exceeding  the 
value  of  $  100,  in  actual  use  by  the  debtor  or  his  family  ;  also  to  a 
farmer,  farming  utensils,  also  two  oxen  or  horses,  or  two  mules  and 
their  harness^  two  cows,  one  cart  or  wagon,  and  food  for  such  ani- 
mals for  one  month ;  also  all  seed  grain  or  vegetables  actually  re- 
served for  planting. 

To  a  mechanic  or  artisan,  tools  or  implements  necessary  to  carry 
on  his  trade. 


246  MONTANA.  [Part  9. 

To  a  physician,  the  instruments  and  chest  necessary  to  the  exer- 
cise of  his  profession,  together  with  his  library  and  one  horse  and 
vehicle. 

To  an  attorney  at  law,  or  a  minister  of  the  Gospel,  their  libraries. 

To  a  miner,  his  cabin,  sluices,  mining  tools  and  appliances  not  to 
exceed  in  value  $500 ;  also  two  horses,  mules  or  oxen,  and  food 
for  the  same  for  one  month,  and  their  harness,  when  necessary  to 
be  used  for  any  windlass,  derrick  or  pump. 

To  a  cartman,  truckster,  peddler,  teamster  or  laborer,  two  horses, 
two  mules,  or  two  oxen  and  their  harness,  and  one  cart  or  wagon, 
by  the  use  of  which  such  person  habitually  earns  his  living. 

Also  the  earnings  of  the  judgment  debtor  for  thirty  days'  next 
preceding  the  levy  of  execution,  when  such  earnings  are  necessary 
for  the  support  of  the  debtor's  family. 

A  homestead  not  exceeding  in  value  $2500  ;  if  agricultural  land, 
not  more  than  eighty  acres ;  if  within  the  limit  of  a  town  or  city  or 
village,  not  more  than  one-fourth  of  an  acre. 

The  sheriff  is  required  to  give  notice  of  sale  as  follows :  by  post- 
ing notice  of  the  time  and  place  of  such  sale  in  three  public  places 
of  the  township  or  city  where  the  sale  is  to  take  place,  for  such 
time  as  may  be  reasonable  in  case  of  perishable  property ;  in  case 
of  other  personal  property,  not  less  than  five  nor  more  than  ten 
days. 

In  case  of  real  property,  by  posting  a  similar  notice  for  twenty 
days,  and  publishing  a  copy  thereof  once  a  week  for  the  same 
period  in  some  newspaper  published  in  the  county,  if  there  be  one. 
In  all  sales  of  real  property,  where  the  estate  is  greater  than  the 
unexpired  term  of  a  two  years'  lease,  the  same  may  be  redeemed 
within  six  months  from  such  sale,  by — first,  the  judgment  debtor, 
second,  a  creditor  having  a  lien  by  judgment  or  mortgage  on  the 
property  sold,  or  some  part  thereof. 


Chaps.  6,  7.]  MONTANA.  247 


CHAPTER  VI. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTIONS. 

When  an  execution  is  returned  unsatisfied,  the  judgment  credit- 
or may  compel  the  debtor  to  appear  before  a  judge  and  answer 
concerning  his  property,  and  upon  such  hearing  witnesses  may  be 
examined.  If  any  property  is  found,  the  judge  may  order  the  same 
applied  on  execution. 


CHAPTER  VII. 
SECURITY  FOR  COSTS— APPEALS. 

SECURITY  FOR  COSTS. 

Security  may  be  required  in  all  cases  where  suit  is  brought  by  a 
non-resident ;  and  where  such  security  is  required,  all  proceedings 
are  stayed,  and  the  action  will  be  dismissed  unless  an  undertaking 
is  filed  in  such  amount  as  may  be  fixed  by  the  Court  within  thirty 
days.  Security  may  also  be  required  of  the  plaintiff,  where  the  de- 
fendant makes  oath  that  the  plaintiff  is  insolvent. 

APPEALS. 
Same  as  in  California. 


248  MONTANA.  [Part  9. 

« 

CHAPTER  VIII. 
ESTATES  OF  DECEASED  PERSONS— HOMESTEADS. 

ESTATES  OF  DECEASED  PERSONS. 

Demands  against  the  estate  of  a  deceased  person  must  be  ex- 
hibited for  allowance  within  two  years  after  granting  letters,  or  they 
will  be  barred.  Any  officer  authorized  to  administer  an  oath  may 
take  proof  of  claims.  There  is  no  time  limited  for  the  settlement 
of  an  estate. 

HOMESTEADS. 

Not  exceeding  in  value  $ 2500,  to  consist  of  not  more  than  eighty 
acres  of  land  ;  or  if  within  the  limits  of  a  town  site,  not  to  exceed 
one-fourth  of  an  acre  is  exempt. 


CHAPTER  IX. 

DEPOSITIONS— JUDICIAL  RECORDS— ACKNOWLEDG- 
MENTS. 

DEPOSITIONS. 
Same  law  as  in  California,  from  which  our  code  was  taken. 


Chap.  10.]  MONTANA.  249 

JUDICIAL  RECORDS 

Of  another  State  or  Territory  are  proved  by  the  production  of  ex- 
emplified copies. 

ACKNOWLEDGMENTS. 

Every  conveyance  affecting  real  estate  must  be  in  writing  and 
acknowledged,  or  proved  and  certified.     The  following  is  a  general 
form  of  acknowledgment,  viz  : 
TERRITORY  OF  MONTANA,  )  „ 

>     DO. 

COUNTY  OF \ 

Be  it  remembered,  that  on  this day  of ,  187 — ,  per- 
sonally appeared  before  the  undersigned,  a  [title  of  office]  within 

and  for  the  county  aforesaid,  personally  appearing,  came 

to  me,  personally  known  to  me  to  be  "the  same  person  mentioned 
in  and  who  executed  the  foregoing  instrument,  and  he  acknowledged 
to  mo  that  he  had  so  executed  the  same  freely  and  voluntarily, 
and  for  the  uses  and  purposes  therein  expressed. 

Witness  my  hand,  etc. 

If  a  married  woman  is  a  party,  the  certificate  must  state  that 
the  officer  examined  her  apart  from  and  without  the  hearing  of 
her  husband,  and  that  she  then  acknowledged  that  she  executed 
the  same  freely  and  voluntarily,  without  fear  of  or  under  compul- 
sion of  her  said  husband,  and  that  she  did  not  wish  to  retract  the 
execution  of  the  same. 


CHAPTER  X. 

LIMITED  PARTNERSHIPS 

May  be  created  by  two  or  more  persons  who  shall  be  responsible 
as  general  partners,  and  two  or  more  persons  who  shall  contribute 
to  the  common  stock  a  specific  sum  in  actual  cash  payments. 


250  MONTANA.  [Part  9. 

The  special  partners  not  to  be  liable  for  any  debt  of  the  partner- 
ship. In  order  to  create  such  partnership  it  is  necessary  that  a 
certificate,  stating  the  name  of  the  partnership  firm,  the  place  of 
residence  of  each  of  the  general  and  special  partners,  the  amount 
of  the  capital  which  each  special  partner  has  contributed,  the 
general  nature  of  the  business,  the  time  when  the  partnership  is  to 
commence  and  when  it  is  to  terminate,  shall  be  made,  acknowledged 
and  recorded  in  the  office  of  the  county  recorder  of  the  county  in 
which  the  principal  place  of  business  of  the  partnership  is  located. 
Any  false  statement  in  such  certificate  subjects  all  parties  to  liability 
as  general  partners. 


CHAPTER  XI. 

MARRIED  WOMEN 

Are  liable  on  their  contracts  made  for  benefit  of  or  with  reference  to 
their  separate  property.  They  may  become  sole  traders  by  filing 
a  certificate  in  the  county  recorder's  office,  and  conduct  business  as 
a  femme  sole. 


CHAPTER  XII. 
CORPORATIONS— CHATTEL  MORTGAGES— INTEREST. 

CORPORATIONS. 

There  is  no  individual  liability  of  stockholders  for  indebtedness 
of  a  corporation,  beyond  the  amount  of  the  unpaid  stock  which 
they  hold. 


Chap.  12.]  MONTANA.  251 


CHATTEL  MORTGAGES. 

All  personal  property  may  be  pledged  or  mortgaged,  and  such 
mortgages  must  be  foreclosed  promptly  when  due.  No  chattel 
mortgage  can  be  made  for  a  longer  period  than  twelve  months. 

INTEREST  AND  USURY. 

The  legal  rate  of  interest  is  ten  per  cent.,  but  any  rate  for  which 
parties  may  contract  is  collectable.  There  is  no  usury  law. 


PART  X. 


WASHINGTON   TERRITORY 


PREPARED    EXPRESSLY   FOR   THIS  WORK   BY  JAMES  K.   KENNEDY, 
WALLA  WALLA. 


CHAPTER  I. 

COURTS   AND  THEIR  JURISDICTION. 

The  Territory  is  divided  into  three  judicial  districts,  each  having 
a  judge,  who  together  compose  the  Supreme  Court. 

The  Supreme  Court  has  appellate  jurisdiction  only,  and  causes 
are  removed  to  it  from  the  District  Courts  by  writs  of  error  or 
appeals. 

The  several  District  Courts  have  general  common  law  and 
chancery  jurisdiction,  in  all  matters  where  the  amount  in  contro- 
versy exceeds  one  hundred  dollars.  They  have  also  general 
jurisdiction  in  causes  arising  under  the  laws  of  the  United  States, 
and  in  admiralty  and  bankruptcy. 

There  is  a  Probate  Court  in  each  county,  holding  four  terms 
each  per  annum,  having  statutory  jurisdiction  in  all  matters 
pertaining  to  decedents'  estates,  and  the  guardianship  and  estates 
of  minors  and  insane  persons.  They  have  no  common  law  juris- 
diction except  such  as  is  strictly  necessary  to  carry  out  and  enforce 
that  defined  by  statute. 


254  WASHINGTON.  [Part  10. 

Justices  of  the  Peace  have  jurisdiction  coextensive  with  the 
limits  of  their  respective  counties,  over  all  causes  arising  on 
contract  for  the  recovery  of  money  only,  when  the  sum  claimed 
does  not  exceed  one  hundred  dollars,  and  in  actions  for  damages 
for  injury  to  person  or  property,  or  for  taking  or  detaining  personal 
property,  if  the  damages  claimed  do  not  exceed  one  hundred 
dollars  ;  also  in  actions  on  undertakings  or  bonds,  when  the  penalty 
or  amount  claimed  does  not  exceed  one  hundred  dollars  ;  also  in 
actions  for  the  foreclosure  of  mortgages,  or  the  enforcement  of 
liens  on  personal  property,  when  the  debt  secured  does  not  exceed 
one  hundred  dollars  ;  also  in  actions  for  damages  for  fraud  and 
deceit  in  the  sale,  purchase,  or  exchange  of  personal  property, 
when  the  damages  claimed  do  not  exceed  one  hundred  dollars  ;  also 
in  actions  of  forcible  entry  and  detainer  ;  also  in  actions  to  try  the 
right  of  possession  to  mining  claims.  They  may  also  take  and 
enter  judgment  on  the  confession  of  a  defendant,  or  upon  default 
for  a  failure  to  appear  or  answer. 


CHAPTER   II. 

TERMS  OF  COURTS— WHEN  AND  WHERE  HELD. 

The  Supreme  Court  holds  one  term  in  each  year,  at  Olympia, 
commencing  on  the  second  Monday  of  July. 

The  District  Court  of  the  first  judicial  district,  Hon.  S.  C. 
Wingard,  judge,  is  held  for  the  counties  of  Walla  Walla  and 
Columbia,  at  Walla  Walla  City,  on  the  first  Monday  of  May  and 
third  Monday  of  October  ;  for  the  county  of  .Yakima,  at  Yakima 
City,  on  the  first  Monday  of  October  of  each  year  ;  for  the 
counties  of  Stevens  and  Whitman,  at  Colfax,  on  the  first  Monday 
of  June  of  each  year. 


Chap.  3.]  WASHINGTON.  255 

The  District  Court  of  the  second  judicial  district,  Hon.  R.  S. 
Green,  judge,  is  held  for  the  counties  of  Klickitat,  Skamania  and 
Clark,  at  Vancouver,  on  the  third  Monday  of  March  and  third 
Monday  of  November  of  each  year  ;  for  the  counties  of  Cowlitz, 
Wahkiakum  and  Pacific,  at  Kalama,  on  the  first  Monday  in 
January  and  the  fourth  Monday  in  June  ;  for  the  counties  of 
Thurston,  Lewis,  Mason  and  Chehalis,  at  Olympia,  on  the  first 
Monday  in  April  and  first  Monday  in  December. 

The  District  Court  of  the  third  judicial  district,  Hon.  J.  E. 
Lewis,  C.  J.,  judge,  is  held  for  the  county  of  Pierce,  at  Steilacoom, 
on  the  first  Monday  of  January  and  first  Monday  of  August;  for 
the  counties  of  King,  Kitsap  and  Snohomish,  at  Seattle,  on  the 
fourth  Monday  of  January  and  third  Monday  of  August ;  for  the 
counties  of  Jefferson,  Island,  Whatcom,  San  Juan  and  Clallam,  at 
Port  Townsend,  on  the  fourth  Monday  of  February  and  fourth 
Monday  of  September. 

In  addition  to  the  above  terms  of  Court,  prescribed  by  Act  of 
the  Legislative  Assembly,  power  is  given  to  the  judges  of  each  dis- 
trict to  appoint,  by  rule  from  time  to  time,  two  special  terms  in 
each  year,  at  which  to  transact  all  business,  except  trials  by  jury, 
and  the  hearing  causes  on  their  merits. 

Terms  of  the  Probate  Courts  are  held  at  the  county  seat  of  each 
county  on  the  fourth  Mondays  of  January,  April,  July  and 
October,  of  each  year. 

Justices'  Courts  are  always  open  for  the  transaction  of  business. 


CHAPTER  III. 

COMMENCEMENT    OF    SUITS—TIME    ALLOWED    TO 

ANSWER. 

Actions  in  the  District  Courts  are  commenced  by  filing  the  com- 
plaint with  the  clerk,  and  the  issuing  a  summons  thereon  at  any 


256  WASHINGTON.  [Part  10. 

time  within  one  year  of  such  filing.  The  defendant  is  required  to 
answer  the  complaint  as  follows :  if  served  within  the  county  where 
the  action  is  brought,  twenty  days  ;  if  served  out  of  the  county  but 
in  the  district  in  which  the  action  is  brought,  thirty  days  ;  in  all 
other  cases,  sixty  days.  If  the  defendant  fails  to  appear  and  an- 
swer according  to  the  requirements  of  the  summons,  the  plaintiff  is 
entitled  to  have  the  default  entered,  and  judgment  for  the  amount 
specified  in  the  summons,  or  for  the  relief  prayed  for  in  the  com- 
plaint. The  complaint  and  all  subsequent  proceedings  in  an  action, 
except  a  demurrer,  must  be  verified  by  the  party,  (his  agent  or 
attorney,  in  the  county  where  the  action  is  brought)  to  the  effect 
that  he  believes  it  to  be  true.  All  common  law  forms  of  pleadings, 
and  all  distinctions  between  law  and  equity  as  to  form,  are  abolish- 
ed, and  the  code  system  adopted. 

In  Probate  Court,  most  of  the  business  can  be  commenced,  pre- 
liminary orders  granted,  and  writs  issued  by  the  judge  in  vacation. 
Orders  or  decrees  for  the  sale  of  real  estate,  the  settlement  of 
estates,  and  discharge  of  executors,  administrators,  or  guardians, 
and  final  orders  and  decrees  generally,  must  be  heard  and  decided 
in  term  time. 

Actions  are  commenced  in  Justices'  Courts  by  filing  with  the 
justice  a  complaint  or  account,  verified  by  the  party,  his  agent  or 
attorney,  to  the  effect  that  he  believes  it  to  be  true,  and  the  issuance 
of  a  summons  or  notice  thereon.  The  summons  or  notice  is  re- 
turnable in  not  less  than  six,  nor  more  than  twenty  days,  from  the 
filing  the  complaint. 


CHAPTER  IV. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  recovery  of  the  possession  of,  or  for  the  fore- 
closure of  a  mortgage  on,  or  in  any  wise  affecting  the  title  to  real 


Chap.  5.]  •  WASHINGTON.  257 

property,  and  all  questions  involving  the  right  or  title  to  personal 
property,  or  for  the  detention  or  injury  to  such  property,  shall  be 
brought  in  the  county  in  which  the  subject  of  the  action  or  some 
part  thereof  is  situated. 

Actions  for  a  penalty  or  forfeiture  imposed  by  statute,  or  against 
public  officers,  shall  be  tried  in  the  county  or  district  where  the 
cause  of  action  or  some  part  thereof  arose. 

Actions  against  corporations  may  be  brought  in  any  county  where 
the  corporation  has  an  office  for  the  transaction  of  business,  or  any 
person  resides  upon  whom  process  against  such  corporation  may 
be  served.  In  all  other  cases  the  action  shall  be  commenced  and; 
tried  in  the  district  embracing  the  county  in  which -the  defendants, 
or  either  of  them  reside,  or  may  be  served  with  process  ;  or  if  none, 
of  them  reside  in  the  Territory,  the  same  may  be  tried  in  any  dis- 
trict or  county  which  the  plaintiflf  may  designate  in  his  complaint.. 


CHAPTER  V.' 

( 

LIMITATION  OF  ACTIONS. 

The  period  prescribed  for  the  limitation  of  actions,  from  the  time 
the  cause  of  action  accrues,  is  as  follows : 

For  the  recovery  of  real  property,  or  the  possession  thereof, 
twenty  years  ;  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  within  the  United 
States,  or  upon  a  contract  in  writing  or  liability,  express  or  implied, 
arising  out  of  a  written  agreement,  or  for  the  rents  and  profits,  or 
use  and  occupation  of  real  estate,  six  years ;  for  waste  or  trespass 
upon  real  property,  or  for  taking,  detaining,  or  injuring  personal 
property,  including  an  action  for  the  recovery  thereof,  or  for  any 
other  injury  to  the  person  or  rights  of  another  not  hereinafter 

17 


258  WASHINGTON.  [Part  10. 

enumerated  ;  upon  a  contract  or  liability,  express  or  implied,  which 
is  not  in  writing,  and  does  not  arise  out  of  any  written  instrument ; 
for  relief  upon  the  ground  of  fraud,  (the  cause  of  action  in  such 
case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  the  fraud)  against  a  min- 
isterial officer  upon  a  liability  incurred  by  the  doing  an  act  in  his 
official  capacity,  or  by  the  omission  of  an  official  duty,  including  the 
non-payment  of  money  collected  upon  execution  ;  upon  a  statute  for 
a  penalty  or  forfeiture,  and  for  seduction  aud  breach  of  marriage 
contract,  three  years  ;  for  libel,  slander,  assault,  assault  and  bat- 
tery and  false  imprisonment,  actions  upon  a  statute  for  a  forfeiture 
or  penalty  to  the  Territory,  two  years ;  against  a  sheriff  or  other 
officer,  for  the  escape  of  a  prisoner  arrested  or  imprisoned  on  civil 
process,  one  year. 

When  the  cause  of  action  arises  in  another  State  or  Territory, 
between  a  resident  of  that  State  or  Territory  and  of  this  Territory, 
the  foregoing  limitations  apply.  When  the  cause  of  action  arises 
in  another  State  or  Territory  between  non-residents  of  this  Terri- 
tory, and  the  same  would  be  barred  there  by  the  lapse  of  time,  it 
will  be  barred  here.  An  action  shall  be  deemed  commenced  as  to 
each  defendant  when  the  complaint  is  filed. 


CHAPTER  VI. 

ATTACHMENTS. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
thereafter,  and  before  judgment,  may  have  the  property  of  the  de- 
fendant attached  as  security  for  the  satisfaction  of  such  judgment 
as  he  may  recover,  whenever  he  or  any  one  on  his  behalf  shall  make 
and  file  an  affidavit  that  a  cause  of  action  exists  against  the  de- 


Chap.  6.]  WASHINGTON.  2f;9 

fendant,  and  the  grounds  thereof,  and  that  the  defendant  is  either — 
first,  a  foreign  corporation  ;  or  secoful,  that  he  is  not  a  resident  of 
this  Territory,  or  has  departed  therefrom  with  intent  to  delay  or  de- 
fraud his  creditors,  or  to  avoid  the  service  of  process,  or  keeps 
himself  concealed  therein  with  like  intent  ;  or  third,  that  he  has 
removed  or  is  about  to  remove  any  of  his  property  from  the  Ter- 
ritory with  intent  to  delay  or  defraud  his  creditors ;  or  fourth,  that 
\IQ  has  assigned,  secreted  or  disposed  of  any  of  his  property,  or  is 
about  to  assign,  secrete  or  dispose  of  it  with  intent  to  delay  or  de- 
fraud-his  creditors  ;  or  fifth,  that  the  defendant  has  been  guilty  of  a 
fraud  in  contracting  the  debt  or  incurring  the  obligation  for  which 
the  action  is  brought. 

Before  the  writ  issues  the  plaintiff  must  file  with  the  clerk  a 
bond,  with  one  or  more  sureties,  in  a  sum  not  less  than  one  hun- 
dred dollars  and  equal  to  the  amount  for  which  the»plaintiff  demands 
judgment,  to  the  effect  that  the  plaintiff  will  pay  all  costs  that  may 
be  adjudged  to  the  defendant,  and  all  damages  which  he  may  sus- 
tain by  reason  of  the  attachment,  if  the  same  be  wrongful,  oppres- 
sive, or  without  sufficient  cause.  All  property  may  be  attached 
not  by  law  exempt  from  execution,  including  debts  owing  to. de- 
fendant. The  defendant  may  have  the  property  attached  delivered 
to  him  by  executing  to  the  sheriff  a  bond,  with  surety  approved  by 
him,  to  the  effect  that  such  property  shall  be  properly  kept  and  de- 
livered upon  demand,  to  be  held  on  execution  ;  or  that  he  will  pay 
the  appraised  value  thereof;  or  the  defendant  may,  before  the  time 
for  answering  expires,  apply  to  the  Court  or  judge  for  the  discharge 
of  the  attachment,  on  the  grounds  that  it  was  improperly  or  improvi- 
dently  issued. 

Writs  of  attachment  may  be  issued  by  justices  of  the  peace, 
upon  any  of  the  foregoing  grounds,  except  that  the  debt  was  con- 
tracted in  fraud,  and  on  the  additional  grounds  that  the  defendant 
is  a  non-resident  of  the  county,  or  is  secretly  leaving  or  has  left  the 
county,  with  the  intent  to  hinder,  delay,  or  defraud  his  creditors. 


260  WASHINGTON.  [Part  10. 


CHAPTER  VII. 

ARREST  IN  CIVIL  ACTIONS. 

The  defendant,  upon  an  order  of  the  Court  or  judge  of  the  Su- 
preme Court,  may  be  arrested  in  the  following  cases,  and  nooth  'V: 

1.  In  an  action  for  the  recovery  of  damages  on  a  cause  of  action 
not  arising  out  of  contract,  where  the  defendant  is  a  non-resident  of 
the  Territory,  or  is  about'  to  remove  therefrom,  or  where  the  action 
is  for  an  injury  to  person  or  character,  or  for  injuring  or  wrongfully 
taking,  detaining,  or  converting  property. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry, 
or  for  money  received,  or  property  embezzled  or  fraudulently  mis- 
applied, or  converted  to  his  own  use  by  a  public  officer,  or  by  an 
attorney,  or  by  an  officer  or  agent  of  a  corporation  in  the  course  of 
his  employment  as  such,  or  by  any  factor,  agent,  broker,  or  other 
person  in  a  fiduciary  capacity,  or  for  any  misconduct  or  neglect  in 
office,  or  in  a  professional  employment. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property,  or  any  part  thereof,  has  been 
concealed,  removed,  or  disposed  of,  so  that  it  cannot  be  found  or 
taken  by  the  sheriff,  with  the  intent  that  it  should  not  be  so  found 
or  taken,  or  with  the  intent  to  deprive  the  plaintiff  of  the  benefit 
thereof. 

4.  When  the  defendant  has  been  guilty  of  fraud  in  contracting 
the  debt  or  incurring  the  obligation  for  which  the  action  is  brought, 
or  in  concealing  or  disposing  of  the  property  for  the  taking,  deten- 
tion, or  conversion  of  which  the%action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do-  so,  with  intent  to  defraud  his  creditors. 

6.  When  the  action  is  to  prevent  threatened  injury  to,  or  de- 
struction of,  property,  and  the  danger  is  imminent  that  such  prop- 
erty will  be  destroyed,  or  its  value  impaired,  to  the  injury  of  plain- 
tiff. 

7.  On  the  final  judgment  or  order  of  any  Court  in  the  Territory, 


Chap.  8.]  WASHINGTON.  261 

when  the  defendant  having  no  property  subject  to  execution,  or  not 
sufficient  to  satisfy  the  judgment,  has  .money  which  he  ought  to  ap- 
ply in  payment  upon  such  judgment,  which  he  refuses  to  apply, 
with  intent  to  defraud  plaintiff;  or  when  he  refuses  to  comply  with 
the  legal  order  of  the  Court,  with  intent  to  defraud  the  plaintiff. 

The  Court  or  judge  making  the  order  shall  first  be  satisfied  by 
affidavit  of  the  party,  his  agent  or  attorney,  and  other  proof  in 
writing,  that  one  or  more  of  the  above  causes  exist.  Before  the 
order  of  arrest  issues,  the  plaintiff,  or  some  one  in  -his  behalf,  shall 
file  a  bond  with  the  clerk  in  such  amount  as  the  Court  or  judge 
may  have  fixed  in  the  order,  with  sureties  to  the  satisfaction  of  the 
clerk,  conditioned  to  pay  to  the  defendant  all  damages  he  shall 
suffer  and  all  expenses  he  shall  incur  by  reason  of  such  arrest  and 
imprisonment,  if  the  order  be  vacated,  or  if  the  plaintiff  fail  to  re- 
cover in  his  action.  The  defendant  may,  on  motion,  apply  to  the 
Court  to  vacate  the  order  of  arrest  on  the  ground  of  insufficiency 
of  the  proof,  or  he  may  show  that  the  facts  alleged  are  untrue,  or 
he  may  give  bail. 

The  grounds  for  issuing  a  warrant  of  arrest  by  a  justice  of  the 
peace  are  the  same  as  above. 


CHAPTER  VIII. 

JUDGMENTS   AND  JUDGMENT  LIENS. 

In  addition  to  judgments  of  non-suit  and  judgments  upon  the 
merits,  either  on  trial  by  jury  or  by  the  Court,  the  plaintiff  may 
have  judgment  by  failure  of  the  defendant  to  appear  and  answer, 
or  upon  the  confession  of  judgment  by  defendant.  A  judgment  in 
the  District  Court  is  a  direct  lien  on  the  real  estate  of  the  defend- 
ant in  the  county  where  the  judgment  is  rendered  for  twenty  days 


262  WASHINGTON.  [Part  10. 

after  the  expiration  of  the  terra.  The  plaintiff,  to  continue  the  lien, 
must,  at  the  expiration  of  said  •  twenty  days,  file  a  transcript  of  the 
judgment  in  the  office  of  the  county  auditor  of  any  county  where 
the  real  estate  is  situated,  which  lien  shall  continue  for  five  years 
from  the  date  of  the  judgment. 

To  make  a  judgment  in  Justices'  Courts  a  lien  on  real  estate, 
the  plaintiff  must  file  a  transcript  of  such  judgment  in  the  office  of 
the  clerk  of  the  District  Court,  and  file  such  transcript,  certified  by 
the  clerk,  in  the  office  of  the  county  auditor  of  the  county  where 
the  real  estate  is  situated. 


CHAPTER   IX. 


EXECUTIONS,  EXEMPTIONS,  SALES,  AND  REDEMP- 
TIONS. 

The  plaintiff  may  have  execution  on  a  judgment  at  any  time 
within  five  years  after  its  rendition ;  if  the  period  of  five  years 
shall  have  elapsed  without  an  execution  having  been  issued,  none 
shall  issue  unless  the  creditor  or  his  assignee  shall  file  a  motion 
with  the  clerk  of  the  Court  to  issue  an  execution,  verified  in  like 
.manner  as  a  complaint,  and  shall  cause  notice  of  such  motion  to  be 
served  on  the  judgment  debtor  in  like  manner  and  with  like  effect 
as  a  summons.  The  motion  shall  be  tried  as  any  other  action. 
Upon  hearing  the  motion,  the  Court  may  order  that  judgment  be 
entered  and  docketed  as  other  judgments.  Executions  require  the 
sheriff  to  exhaust  the  personal  property  of  the  defendant,  not 
exempt  from  execution,  before  levying  on  real  estate.  They  can 
be  issued  to  any  sheriff  in  the  Territory,  when  the  defendant  has 
property,  by  plaintiff,  his  agent  or  attorney,  making  an  affidavit 
that  the  defendant  has  not  sufficient  property  in  the  county  where 


Chap.  9.]  WASHINGTON.  263 

the  execution  issued,  to  satisfy  the  judgment,  but  that  he  has 
property  subject  to  execution  in  such  other  county.  Execution 
may  be  stayed  by  defendant  on  giving  a  bond  to  the  opposite  party 
in  double  the  amount  of  the  judgment  and  costs,  with  surety  to  the 
satisfaction  of  the  clerk,  conditioned  to  pay  said  judgment,  interest, 
costs,  and  increased  costs,  at  the  expiration  of  the  period  of  the 
stay,  which  is  as  follows :  In  the  Supreme  Court,  on  all  sums  under 
$500,  thirty  days  ;  on  all  sums  over  $500  and  under  $1500,  sixty 
days;  on  all  sums  over  $1500,  ninety  days.  In  the  District 
Court,  on  all  sums  under  $300,  two  months  ;  on  all  sums  over 
$300  and  under  $1000,  five  months ;  on  all  sums  over  $1000,  six 
months.  In  Justices'  Courts,  on  any  sum  not  exceeding  twenty- 
five  dollars,  one  month  ;  more  than  twenty-five  dollars,  two  months. 


EXEMPTIONS. 

All  property,  real  and  personal,  belonging  to  a  married  woman 
at  the  time  of  her  marriage,  and  all  which  she  may  subsequently 
acquire  in  her  own  right,  and  all  the  personal  earnings,  and  all  the 
issues,  rents,  and  profits  of  such  real  estate,  shall  not  be  liable  to 
attachment  or  execution  upon  any  liability  or  judgment  against  the 
husband,  so  long  as  she  or  any  minor  heir  of  her  body  shall  be 
living.  Every  householder  being  the  head  of  a  family  is  entitled, 
as  exempt  from  attachment  and  execution,  to  a  homestead  riot 
exceeding  in  value  the  sum  of  one  thousand  dollars,  while  occupied 
as  such  by  the  owner  thereof,  or  his  or  her  family.  The  following 
property  shall  also  be  exempt  from  execution  :  All  wearing  apparel, 
private  libraries,  family  pictures,  and  keepsakes  ;  to  each  house- 
holder one  bed  and  bedding,  and  one  additional  bed  and  bedding 
for  every  two  members  of  the  family,  and  other  household  goods, 
utensils,  and  furniture  not  exceeding  $150,  coin,  in  value;  two 
cows  and  calves,  five  swine,  two  stands  of  bees,  twenty-five 
domestic  fowls,  and  provisions  and  fuel  for  the  comfortable  main- 
tenance of  such  householder  and  family  for  six  months.  To  a 
farmer,  one  span  of  horses  and  harness,  or  two  yoke  of  oxen,  with 
yokes  arid  chains,  and  one  wagon ;  also  farming  utensils,  actually 
used  about  the  farm,  not  exceeding  in  value  $200  in  coin.  To  a 


264  WASHINGTON.  [Part  10. 

mechanic,  the  tools  of  his  trade,  also  material  not  exceeding  in 
value  $500  coin.  To  a  physician,  his  library  not  exceeding  in 
value  $500  coin ;  also  one  horse  and  buggy,  the  instruments  used 
in  his  practice,  and  medicines  not  exceeding  in  value  $200  coin. 
To  attorneys,  clergymen,  and  other  professional  men,  their  libraries, 
not  exceeding  $500  coin  value,  and  office  furniture,  fuel,  and 
stationery,  not  exceeding  $200  coin  value.  All  firearms  kept 
for  the  use  of  any  person  or  family.  To  all  persons,  a  canoe,  skiff, 
or  small  boat,  with  its  oars,  sails  and  rigging,  not  exceeding  $50 
coin.  To  a  person  engaged  in  lightering  for  his  support,  one  or 
more  lighters,  barges,  or  scows,  and  a  small  boat,  with  oars,  sails 
and  rigging,  not  exceeding  in  the  aggregate  $250  coin  value.  To 
a  teamster  or  drayman,  his  team :  the  word  team  meaning  a  span 
of  horses,  harness,  and  one  wagon  or  dray  ;  a  sufficient  quantity  of 
hay,  grain  or  feed  to  keep  the  animals  herein  exempt  for  six  months. 
No  property  shall  be  exempt  from  an  execution  issued  on  a  judg- 
ment for  the  price  or  any  part  of  the  price  thereof. 

SALES. 

Personal  property  is  sold  by  the  sheriff  upon  ten  days'  notice  of 
the  time  and  place  of  such  sale,  posted  in  three  public  places  of 
the  county :  real  estate,  by  posting  similar  notices,  particularly 
describing  the  property,  for  four  weeks  in  three  public  places  of 
the  county  where  the  property  is  to  be  sold,  and  publishing  a  copy 
thereof  once  a  week,  for  the  same  period,  in  a  newspaper  of  the 
county.  All  sales  of  property  upon  execution  shall  be  by  auction. 
Sales  of  personal  property  shall  be  in  view  of  the  property,  and  of 
real  estate,  at  the  Court-house  door. 

REDEMPTION. 

Sales  of  real  estate  are  confirmed  at  the  next  term  of  the  District 
Court,  and  the  defendant,  or  his  successor  in  interest,  or  any  person 
having  a  lien  thereon,  may  redeem  such  real  estate  within  six 
months  after  confirmation,  by  paying  the  amount,  with  two  per  cent, 
interest  per  month. 


Chaps.  10, 11.]  WASHINGTON.  265 


CHAPTER   X. 


PROCEEDINGS    SUPPLEMENTARY     TO    EXECUTION. 

The  plaintiff  in  proceedings  supplementary  to  execution  may 
upon  a  proper  showing  to  the  Court  or  judge,  have  an  order  re- 
quiring defendant  to  appear  and  answer  as  to  any  property  which 
he  may  have  subject  to  execution,  and  which  ought  to  be  applied 
on  the  judgment ;  or  if  it  appears  there  is  danger  of  the  defendant 
absconding,  the  order  may  require  his  arrest,  and  upon  being 
brought  before  the  judge  he  may  be  ordered  to  enter  into  bond,  with 
surety,  that  he  will  appear  from  time  to  time  during  such  proceed- 
ings, and  will  not  in  the  meantime  dispose  of  any  of  his  property 
subject  to  execution.  Any  person  indebted  to  the  defendant  in  a 
sum  exceeding  fifty  dollars,  may  be  required  to  appear  and  answer 
concerning  the  samfc. 


CHAPTER  XI. 


SECURITY   FOR  COSTS. 

When  the  plaintiff  resides  out  of  the  district  or  county,  or  is  a 
foreign  corporation,  security  for  costs  may  be  required  by  the  de- 
fendant ;  when  required,  all  proceedings  in  the  action  shall  be  stay- 
ed until  a  bond,  executed  by  two  or  more  persons,  be  filed  with  the 
clerk,  conditioned  that  they  will  pay  such  costs  and  charges  as  may 
be  awarded  against  plaintiff,  not  exceeding  the  sum  of  $200. 


266  WASHINGTON.  [Part  10. 


CHAPTER  XII. 

APPEALS  AND  WRITS  OF  ERROR 

May  be  taken  from  the  District  Courts  to  the  Supreme  Court  of 
the  Territory  within  six  months  from  the  date  of  the  order,  judg- 
ment or  decree  appealed  from,  and  not  afterwards.  To  stay  pro- 
ceedings in  the  Court  below,  the  appellant  or  plaintiff  in  error, 
must  file  a  bond  with  sureties  to  the  satisfaction  of  the  clerk. 
Appeals  from  the  Probate  Court  to  the  District  Court  must  be 
taken  within  sixty  days  from  the  rendition  of  the  decision  or  judg- 
ment, and  from  Justices  of  the  Peace  to  the  District  Court,  within 
twenty  days  from  the  date  of  the  judgment.  The  party  appealing 
shall  execute  and  file  with  the  justice  a  bond  with  one  or  more 
sureties  in  the  sum  of  $  100,  to  the  effect  that  the  appellant  will 
pay  all  costs  ;  or  if  a  stay  of  proceedings  be  claimed,  a  bond  with 
two  or  more  sureties  in  a  sum  equal  to  twice  the  amount  of  the 
judgment. 


CHAPTER  XIII. 

ESTATES  OF  DECEASED  PERSONS.  . 

Claims  against  decedents'  estates  must  be  filed  within  one  year 
from  the  publication  of  notice  to  creditors.  The  Court  may,  how- 
ever, in  its  discretion,  order  a  shorter  time  in  any  particular  case, 
but  not  less  than  six  months  from  the  date  off  notice.  To  entitle  a 
claim  to  be  filed,  it  must  be  supported  by  the  affidavit  of  the  claim- 
ant that  the  amount  is  justly  due,  that  no  payments  have  been 


Chap.  14.]  WASHINGTON.  267 

made  thereon,  and  that  there  are  no  offsets  to  the  same  to  the 
knowledge  of  the  claimant.  The  oath  may  be  taken  before  any 
officer  authorized  to  administer  oaths,  and  in  a  neighboring  State 
or  Territory,  the^  oath,  if  not  administered  by  a  commissioner  for 
the  Territory,  must  be  properly  authenticated,  the  certificate  stating 
that  such  person  is  authorized  to  administer  oaths,  and  that  his  sig- 
nature is  genuine,  with  the  seal  of  a  Court  of  record  to  such 
certificate.  The  claim  being  thus  proved,  must  be  presented  to 
the  administrator  for  his  allowance  ;  if  he  allow  it,  it  is  presented  to 
the  probate  judge  for  his  allowance,  when,  if  allowed  by  him,  the 
same  is  filed.  If  either  the  administrator  or  probate  judge  reject 
it,  the  party  has  three  months  within  which  to  bring  suit  on  it. 
Estates  must  be  settled  within  one  year,  unless  further  time  be 
granted  by  the  Court. 


CHAPTER  X1Y. 


HOiMESTEADS. 

See  Exemptions.  A  homestead  may  consist  of  a  house  and  lot, 
or  lots,  in  any  city,  or  of  a  farm  of  any  number  of  acres,  so  that 
their  value  does  not  exceed  $1000.  To  entitle  a  person  to  a 
homestead,  he  or  she  shall  cause  the  word  "  homestead  "  to  be  en- 
tered of  record  in  the  margin  of  his  or  her  recorded  title  to  the 
same, 


268  WASHINGTON.  [Part  10. 


CHAPTER  XV. 


DEPOSITIONS 

Of  witnesses  residing  in  the  Territory  may  be  taken,  when  the 
witness  resides  out  of  the  district,  and  more  than  twenty  miles  from 
the  place  of  trial ;  or  when  the  witness  is  about  to  leave  the  district, 
and  go  more  than  twenty  miles  from  the  place  of  trial ;  or  when  he 
is  sick,  infirm,  or  aged,  so  as  to  make  it  probable  he  will  not  be  able 
to  attend  the  trial,  before  any  judge  of  the  District  Court,  justice  of 
the  peace,  clerk  of  the  Supreme  or  District  Courts,  mayor  of  a  city 
or  notary  public,  upon  serving  on  the  adverse  party,  or  his  attor- 
ney, three  days'  notice  of  the  time  and  place  of  examination,  and 
one  day  for  every  ten  miles  of  the  distance  of  the  place  of  examina- 
tion from  the  residence  of  the  person  to  whom  notice  is  given.  The 
deposition  must  be  read  to  the  witness  and  signed  Hfy  him,  and  cer- 
tified by  the  officer  taking  the  same.  .The  deposition  of  a  witness 
out  of  the  Territory,  but  residing  within  a  hundred  miles  of  the 
place  of  holding  Court,  may  be  taken  under  a  notice  m  the  same 
manner,  and  before  like  character  of  officers  as  above.  In  all  other 
cases,  the  deposition  of  a  witness  out  of  the  Territory  shall  be  taken 
upon  a  commission  by  the  clerk,  under  the  seal  of  the  Court,  upon 
the  order  of  the  Court  or  a  judge  thereof,  upon  giving  to  the  oppo- 
site party  or  his  attorney  ten  days'  previous  notice  in  writing,  to- 
gether with  a  copy  of  the  interrogatories  that  may  be  put  to  the 
witness. 


Chaps.  16,  IT.]  WASHINGTON.  269 


CHAPTER   XVI. 

JUDICIAL    RECORDS    OF    OTHER   STATES,   HOW 
PROVED. 

The  records  and  proceedings  of  any  Court  of  the  United  States, 
or  any  State  or  Territory,  shall  be  admissible  in  evidence  in  all  cases 
in  Washington  Territory,  when  authenticated  by  the  attestation  of 
the  clerk,  prothonotary,  or  other  officer  having  charge  of  the  records 
of  such  Court,  with  the  seal  of  such  Court  annexed. 


CHAPTER  XVII. 


ACKNOWLEDGMENTS. 

All  deeds  affecting  the  title  to  real  estate,  or  of  any  interest 
therein,  and  all  contracts  creating  or  evidencing  any  encumbrance 
on  real  estate,  shall  be  by  deed.  All  deeds  must  be  acknowledged 
before  one  of  the  following  officers,  if  made  in  the  Territory :  a 
judge  of  the  Supreme  Court,  a  judge  of  the  Probate  Court,  a  jus- 
tice of  the  peace,  a  county  auditor,  a  clerk  or  a  regularly  appointed 
deputy  clerk  of  the  District  or  Supreme  Court,  or  a  notary  public, 
duly  qualified.  If  made  out  of  the  Territory,  but  in  the  United 
States,  they  may  be  acknowledged  before  any  person  authorized  to 
take  acknowledgments  of  deeds  by  the  laws  of  the  State  or  Territory 
wherein  the  acknowledgment  is  taken,  or  before  any  commissioner 
appointed  by  the  Governor  of  Washington  Territory  for  such  pur- 
pose. Unless  such  acknowledgment  be  taken  before  a  commissioner, 


270 


WASHINGTON. 


[Part  10. 


such  deed  shall  have  attached  thereto  a  certificate  of  the  clerk  or 
other  proper  certifying  officer  of  a  Court  of  record  of  the  county  or 
district  within  which  the  acknowledgment  was  taken,  under  the  seal 
of  his  office,  that  the  person  whose  name  is  subscribed  to  the  cer- 
tificate of  acknowledgment  was,  at  the  date  thereof,  such  officer  as 
he  is  therein  represented  to  be  ;  that  he  is  authorized  by  law  to  take 
acknowledgments  of  d^eds ;  and  that  he  believes  the  signature  of 
the  person  subscribed  thereto  to  be  genuine.  If  made  in  a  foreign 
country,  out  of  the  United  States,  they  shall  be  acknowledged  or 
proved  by  two  witnesses  before  any  minister  plenipotentiary,  charge 
d'affaires,  consul,  "general  consul,"  vice-consul,  or  commercial 
agent  appointed  by  the  government  of  the  United  States  to  any 
foreign  country,  or  the  proper  officer  of  any  Court  of  such  country, 
or  the  mayor  or  other  chief  magistrate  of  any  city,  town,  or  corpo- 
ration therein.  Such  officer  shall  make  and  sign  officially  a  cer- 
tificate of  acknowledgment,  or  of  the  proof  by  two  witnesses,  as  the 
case  may  be,  which  shall  be  annexed  to  the  deed. 

There  are  no  particular  requisites  of  an  acknowledgment,  except 
in  case  of  a  married  woman.  She  shall  not  be  bound  by  any  deed 
affecting  her  own  real  estate  or  any  interest  in  real  estate,  unless 
she  shall  be  joined  in  the  conveyance  by  her  husband,  and  shall, 
upon  an  examination  by  the  officer  taking  the  acknowledgment, 
separate  and  apart  from  her  husband,  acknowledge  that  she  did 
voluntarily,  of  her  own  free  will,  and  without  the  fear  of  or  coercion 
from  her  husband,  execute  the  deed  ;  and  the  officer  shall  make 
known  to  her  the  contents  of  the  deed,  and  shall  certify  that  he  has 
made  known  to  her  its  contents,  and  examined  her  separate  and 
apart  from  her  husband,  as  is  above  provided.  In  case  the  hus- 
band and  wife  mortgage  the  homestead,  the  officer  shall  certify 
that  she  did  freely  and  voluntarily,  separate  and  apart  from  her 
husband,  sign  and  acknowledge  said  mortgage,  and  the  officer  taking 
the  acknowledgment  shall  fully  apprise  her  of  her  rights  and  the 
effect  of  signing  such  mortgage. 


Chaps.  18-20.]  WASHINGTON.  271 

CHAPTER   XVIII. 

LIMITED   PARTNERSHIPS. 

There  is  no  law  of  limited  partnerships  in  this  Territory.     The 
liability  of  partners  is  unrestricted. 


CHAPTER   XIX. 

MARRIED  WOMEN 

Cannot  become  sole  traders  in  this  Territory.  All  property  owned 
by  the  wife  at  the  time  of  her  marriage,  and  that  acquired  after- 
wards by  gift,  bequest,  devise  or  descent,  is  her  separate  property, 
but  is  liable  for  her  husband's  debts,  unless  she  has  a  recorded  in- 
ventory of  the  same  in  the  office  of  the  county  auditor  of  the  county 
where  the  property  is  situated.  The  wife  can  make  no  contract  in 
her  own  right,  except  in  particular  cases  affecting  her  separate 
property. 


CHAPTER  XX. 

CORPORATIONS. 

Each  and  every  stockholder  shall  be  personally  liable  to  the 
creditors  of  the  company  to  the  amount  of  what  remains  unpaid 
on  his  subscription  to  the  capital  stock,  and  not  otherwise. 


272  WASHINGTON.  [Part  10. 


CHAPTER  XXI. 

CHATTEL  MORTGAGES 

May  be  made  upon  locomotives,  engines,  and  the  other  rolling 
stock  of  a  railroad  ;  steam  machinery  and  machinery  used  by  ma- 
chinists, foundrymen,  and  mechanics  ;  steamboat  engines  and  boil- 
ers ;  mining  machinery  ;  printing  presses  and  material  ;  profes- 
sional libraries ;  instruments  of  a  physician,  surgeon,  or  dentist ; 
upholstery  and  furniture  used  in  hotels  or  boarding-houses,  when 
mortgaged  to  secure  the  purchase  money  of  the  articles  mortgaged  ; 
growing  crops  ;  vessels  of  more  than  five  tons  burden.  The  mort- 
gage must  be  accompanied  by  the  affidavit  of  all  the  parties 
thereto  that  it  is  made  in  good  faith,  and  without  any  design  to 
hinder,  delay,  or  defraud  creditors.  It  must  be  acknowledged  or 
proved,  certified,  and  recorded  in  the  same  manner  as  deeds  to 
real  estate.  It  must  be  recorded  in  the  office  of  the  county  audi- 
tor where  the  mortgagor  resides,  and  also  of  the  county  in  which 
the  property  mortgaged  is  situated,  or  to  which  it  may  be  removed, 
and  must  be  recorded  in  books  kept  for  chattel  mortgages  exclu- 
sively. 


CHAPTER   XXII. 

INTEREST. 

The  legal  rate  of  interest  is  ten  per  cent,  per  annum,  in  the 
absence  of  any  contract  in  writing,  fixing  a  different  rate.  Parties 
may  contract  in  writing  for  any  rate  of  interest  that  they  may 
agree  upon. 


PAUT  XL 


ARIZONA  TERRITORY 


CHAPTER   I. 

COURTS  AND  THEIR  JURISDICTION. 

The  following  are  the  Courts  of  justice  for  the  Territory  : 

1.  The  Supreme  Court.  2.  The  District  Courts.  3.  The 
Probate  Courts.  4.  The  Justices'  Courts. 

The  Supreme,  Court  has  appellate  jurisdiction  in  all  cases  wherein 
the  legality  of  any  tax,  toll,  impost,  or  municipal  fine  is  in  question. 
It  also  has  jurisdiction  to  review  upon  appeal — 

First.  A  judgment  in  action  or  proceeding  commenced  in  a  Dis- 
trict C<  urt,  or  brought  into  that  Court  from  another  Court,  where 
the  matter  in  dispute  exceeds'  one  hundred  dollars,  or  when  the 
possession  of,  or  title  to  lands  or  tenements-  is  in  controversy  ;*and 
to  review  upon  the  appeal  from  such  judgment  any  intermediate  or 
collateral  order  of  the  Court  or  judge  at  chambers,  involving  the 
merits  and  necessarily  affecting  the  judgment. 

Second.  An  order  granting  or  refusing  a  new  trial,  sustaining  or 
overruling  a  demurrer,  or  affecting  a  substantial  right  in  an  action 
or  proceeding. 

The  District  Courts  have  jurisdiction  as  follows : 

Original  jurisdiction  in  all  civil  cases  where  the  amount  exceeds 

18 


274  ARIZONA.  [Fart  11. 

one  hundred  dollars,  exclusive  of  interest,  and  in  cases  involving 
the  title  or  possession  of  real  property. 

Appellate  jurisdiction  in  Justice  Court  actions,  and  orders  of 
judgments  of  the  Probate  Courts  in  certain  cases. 

The  Probate  Courts  have  jurisdiction  of  estates  of  deceased 
persons. 

Justices'  Courts  have  jurisdiction  as  follows : 

1.  Of  an  action  arising  on  contract  for  the  recovery  of  money 
only,  if  the  sum  claimed  does  not  exceed  three  hundred  dollars. 

2.  Of  an  action  for  damages  for  injury  to   the  person,  or  for 
taking  or  detaining  personal  property,  or  for  injuring  real  or  per- 
sonal property,  if  the  damages  claimed  do  not  exceed  three  hun- 
dred dollars. 

3.  Of  an  action  upon  a   bond  conditioned  for  the  payment  of 
money  not   exceeding  three  hundred  dollars,  though  the  penalty 
exceed  that  sum,  the  judgment  to  be  given  for  the  sum  actually 
due  ;  when  the  payments  are  to  be  made  by  installments,  an  action 
may  be  brought  for  each  installment  as  it  becomes  due. 

4.  Of  an  action  for  the  foreclosure  of  any  mortgage,  or  the  en- 
forcement of  any  lien  on  personal  property,  where  the  debt  secured 
does  not  exceed  three  hundred  dollars. 

5.  Of  an  action  to  recover  personal  property,  when  the  value  of 
such  personal  property  does  not  exceed  three  hundred  dollars. 

Their  jurisdiction  does  not  extend  to  civil  actions  in  which  the* 
title  to  real  property  is  brought  in  question. 


CHAPTER   II. 

TERMS  OF  COUETS,  WHEN  AND  WHERE  HELD. 

The  Supreme  Court  is  held  at  Tucson,  commencing  on  the  first 
^Monday  in  January  of  each  year. 

The  District  Courts  in  the  several  counties  are  held  as  follows : 


Chap.  3.]  ARIZONA.  275 

Pima  County,  on  the  second  Monday  of  February  and  first  Mon- 
day in  August,  of  each  year. 

Yuma  County,  on  the  third  Monday  of  March  and  first  Monday 
of  December,  in  each  year. 

Yavapai  County,  on  the  first  Monday  of  May  and  first  Monday 
of  October,  in  each  year. 

Maricopa  County,  on  the  first  Monday  of  April  and  first  Mon- 
day in  September,  of  each  year. 

Mohave  County,  on  the  first  Monday  of  June  and  the  second 
Monday  in  November,  of  each  year. 

Final  County,  on  the  first  Monday  of  June,  in  each  year. 

District  Court  is  held  at  the  county  seat  of  each  county. 

Probate  Court  is  held  at  the  county  seat  of  each  county,  on  the 
first  Monday  of  January,  April,  July  and  October,  in  each  year, 
and  the  judge  may  hold  such  adjourned  or  special  terms  as  he 
thinks  proper. 

Justices'  Courts  are  always  open  for  the  transaction  of  business. 


CHAPTER  III. 

COMMENCEMENT  OF  SUITS. 

Civil  actions  are  commenced  by  filing  a  complaint  with  the 
Court  or  justice,  and  issuing  a  summons  thereon. 

The  defendant  is  required  to  answer  the  complaint  in  District 
Court  actions  as  follows  : 

1.  If  the  defendant  is  served  within  the  county  in  which  the  ac- 
tion is  brought- — twenty  days. 

2.  If  the  defendant  is  served  out  of  the  county,  but  in  the  dis- 
trict in  which  the  action  is  brought — thirty  days. 

3.  In  all  other  cases — forty  days. 

Where  personal  service  cannot  be  had,  by  reason  of  the  defend- 


276  ARIZONA.  [Part  11. 

ant  being  out  of  the  Territory,  or  where  he  conceals  himself  to  avoid 
service  of  process,  service  is  made  by  publication,  upon  an  order 
made  by  the  judge  or  justice  of  the  peace. 

In  District  Court  actions  the  order  shall  direct  the  publication  to 
be  made  in  some  newspaper  to  be  designated  as  most  likely  to  give 
notice  to  the  defendant ;  the  last  of  such  insertions  to  be  sixty 
days  from  the  first ;  the  order  prescribes  the  time  for  publication. 
In  Justice  Court  actions  the  publication  shall  be  once  a  week  for 
at  least  four  weeks,  arid  the  justice  shall  issue  a  new  summons  re- 
turnable in  not  less  than  sixty,  nor  more  than  seventy  davs  from  its 
date. 

In  Justice  Court  actions  the  time  mentioned  in  the  summons 
for  the  appearance  of  the  defendant  and  the  time  of  service  shall 
be  as  follows : 

1.  When  the  summons  is  accompanied  by  an  order  to  arrest  the 
defendant,  it  shall  be  returnable  immediately. 

2.  When  the  defendant  is  not  a  resident  of  the  county,  it  shall 
be  returnable  not  more  than  two  days  from  its  date,  and  shall  be 
served  at  least  one  day  before  the  time  for  appearance. 

3.  In  all  other  cases  it  shall  be  returnable  in  not  less  than  six  nor 
more  than  ten  days  from  its  date,  and  shall  be  served  at  least  four 
days  before  the  time  for  appearance. 


CHAPTER   IV. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  following  causes  shall  be  tried  in  the  county  in 
which  the  subject  of  the  action,  or  some  part  thereof,  is  situated  : 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest 
therein,  or  for  the  determination  in  any  form  of  such  right  or  in- 
terest, and  for  injuries  to  real  property. 


Chap.  4.]  ARIZONA.  277 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  a  mortgage  of  real  property. 
Actions  for  the  following  causes  shall  be  tried  in  the  county  where 

the  cause,  or  some  part  thereof,  arose  : 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  statute. 

2.  Against  a  public  officer. 

In  other  cases  the  action  shall  be  tried  in  the  county  in  which 
the  parties,  or  some  of  them,  reside,  at  the  commencement  of  the 
action,  or  the  defendant  may  be  found  ;  or  if  none  of  the  parties 
reside  in  the  Territory,  the  same  may  be  tried  in  any  county  which 
the  plaintiff  may  designate  in  his  complaint. 

The  Court  may,  on  motion,  change  the  place  of  trial. 

1.  When   the  county  designated   in  the  complaint  is  not  the 
proper  county. 

2.  When  there  is  reason  to  believe  that  an  impartial  trial  cannot 
be  had  therein. 

3.  When  the  convenience  of  witnesses  and  the  ends  of  justice 
would  be  promoted  by  the  change. 

4.  When  from  any  cause  the  judge  is  disqualified  from  acting  in 
the  action. 

No  person  shall  be  held  to  answer  to  any  summons  issued  against 
him  from  a  Justice's  Court  in  a  civil  action,  in  any  precinct  other 
than  the  one  in  which  he  or  the  plaintiff  shall  reside,  except  in  the 
cases  following: 

1.  Where  there  shall  be  no  Justice's  Court  for  the  precinct  or 
village  in  which  the  defendant  or  plaintiff  may  reside,  or  no  justice 
competent  to  act  in  the  case. 

2.  When  two  or  more  persons  shall  be  jointly  or  jointly  and  sev- 
erally bound  in  any  debt  or  contract,  or  otherwise  jointly  liable  in 
the  same  action,  and  reside  in  different  precincts  of  the  same  coun- 
ty, or  in  different  counties,  the  plaintiff  may  prosecute  his  action  in 
a  Justice's  Court  of  the  presincb  or  county  in  which  any  of  the 
debtors  or  other  persons  liable  may  reside. 

3.  In  case  of  injury  to  the  person,  or  to  real  and  personal  prop- 
erty, the  plaintiff  may  prosecute  his  action  in  the  precinct  where 
the  injury  was  committed,  or  where  the  defendant  may  be  found. 

4.  Where    personal   property,   unjustly  taken   or    detained,  is 


278  ARIZONA.  [Part  11. 

claimed,  or  damages  therefor  are  claimad,  the  plaintiff  may  bring 
his  action  in  any  precinct  or  county  in  which  the  property  may  be 
found,  or  in  which  the  property  was  taken. 

5.  When  the  defendant  is  a  non-resident  of  the  county,  he  may 
be  sued  in  any  precinct,  village  or  city  wherein  he  may  be  found. 

6. ,  When  a  person  has  contracted  to  perform  any  obligation  at  a 
particular  place,  and  resides  in  another,  he  may  be  sued  in  the 
precinct  in  which  such  obligation  is  to  be  performed  or  in  which  he 
resides. 

7.  When  the  foreclosure  of  a  mortgage,  or  the  enforcement  of  a 
lien  upon  personal  property,  is  sought  by  the  action,  the  plaintiff 
may  sue  in  the  precinct,  village  or  city  where  the  property  is  situ- 
ated. 


CHAPTER  V.    \ 

LIMITATION  OF  ACTIONS. 

The  periods  prescribed  for  the  commencement  of  actions  are  as 
follows : 

Within  five  years — An  action  for  the  recovery  of  real  property 
or  the  possession  thereof;  an  action  upon  a  judgment  or  decree  of 
any  Court  of  the  United  States,  or  of  any  State  or  Territory  with- 
in the  United  States. 

Within  four  years — An  action  upon  any  contract,  obligation,  or 
liability  founded  upon  an  instrument  of  writing. 

Within  three  years — An  action  for  trespass  upon  real  property  ; 
an  action  for  taking,  detaining  or  injuring  any  goods  or  chattels,  in- 
cluding actions  for  the  specific  recovery  of  personal  property ;  an 
action  for  relief  on  the  ground  of  fraud,  the  cause  of  action  in  such 
case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  the  fraud. 


Chap.  5.]  ARIZONA.  279 

•  Within  two  years — An  action  upon  a  contract,  obligation  or  lia- 
bility, not  founded  upon  an  instrument  of  writing  ;  also,  an  action 
against  a  sheriff,  coroner,  or  constable,  upon  the  liability  incurred 
by  the  doing  of  an  act  in  his  official  capacity,  and  in  virtue  of  his 
office,  or  by  the  omission  of  an  official  duty,  including  the  non- 
payment of  money  collected  upon  an  execution.  The  above  does 
not  apply  to  open  accounts  for  goods,  wares  and  merchandise  sold 
and  delivered,  nor  to  an  action  for  an  escape. 

Within  one  year — An  action  for  libel,  slander,  assault,  battery, 
or  false  imprisonment ;  an  action  against  a  sheriff  or  other  officer 
for  the  escape  of  a  prisoner  arrested  on  civil  process  ;  an  action  on 
an  open  account  for  goods,  wares  and  merchandise  sold  and  de- 
livered. 

The  statute  begins  to  run  from  the  time  the  cause  of  action  ac- 
crued. 

% 

Part  payment  does  not  prevent  the  statute  running  ;  but  in 
an  action  brought  to  recover  a  balance  due  upon  a  mutual,  open  ac- 
count, where  there  have  been  reciprocal  demands  between  the 
parties,  the  cause  of  action  shall  be  deemed  to  have  accrued  from 
the  time  of  the  last  item  proved  in  the  account  on  either  side. 

An  action  upon  a  contract,  obligation  or  liability  for  the  payment 
of  money,  founded  upon  an  instrument  of  writing,  executed  out  of 
this  Territory,  can  only  be  commenced  as  follows  : 

First.  Within  one  year,  when  more  than  two  and  less  than  five 
years  have  elapsed  since  the  cause  of  action  accrued. 

Second.  Within  six  months,  when  more  than  five  years  have 
elapsed  since  the  cause  of  action  accrued. 

When  the  cause  of  action  has  arisen  in  another  State,  Territory, 
or  foreign  country,  and  is  there  outlawed,  no  action  will  lie  in  this 
Territory.  If  when  the  cause  of  action  accrues  against  a  person,  he 
is  out  of  the  Territory,  the  action  may  be  commenced  within  the 
term  herein  limited,  after  his  return  to  the  Territory  ;  and  if  after 
the  cause  of  action  accrues  he  departs  from  the  Territory,  the  time 
of  his  absence  shall  not  be  part  of  the  time  limited  for  the  com- 
mencement of  the  action. 


280  ARIZONA.  [Part  11. 


CHAPTER  VI. 

ATTACHMENTS. 

Attachments  in  District  Court  actions  can  only  be  issued  : 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the 
direct  payment  of  money,  and  which  is  not  secured  by  a  mortgage 
upon  real  or  personal  property. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a 
defendant  not  residing  in  this  Territory. 

Before  issuing  the  writ  of  attachment,  an  affidavit  on  the  part 
of  the  plaintiff  must  be  filed,  showing : 

That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the 
amount  of  the  indebtedness  over  and  above  all  legal  set-offs  or 
counter  claims)  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  and  that  such  contract  was  made  or  is  payable 
in  the  Territory,  and  that  the  payment  of  the  same  has  not  been 
secured  by  any  mortgage  on  real  or  personal  property,  and 
showing  also  the  existence  of  either  of  the  following  causes : 

1.  That  the  defendant  is  not  a  resident  of  this  Territory. 

2.  That  he  is  about  to  remove  his  property  and  effects  beyond 
the  limits  of  this  Territory. 

3.  That  he  has  absconded  from  his  usual  place  of  abode  in  this 
Territory,  so  that  the  ordinary  process  of  law  cannot  be  served 
upon  him. 

4.  That  he  is  about  fraudulently  to  conceal  or  make  away  with 
his  property  and  effects,  so  as  to  defraud,  hinder,  or  delay  his 
creditors. 

5.  That  he  has  fraudulently  concealed  or  made  ^away  with  his 
property  and  effects,  so  as  to  defraud,  hinder,  or  delay  his  creditors* 

6.  That  he  is  about  fraudulently  to  convey,  assign,  or  dispose  of 
his  property,  so  as  to  defraud,  hinder,  or  delay  his  creditors. 

7.  That  he  has  fraudulently  conveyed,  assigned,  and  disposed  of 
his  property,  to  defraud,  hinder,  or  delay  his  creditors. 

8.  That  the  defendant  is  a  non-resident  corporate  body. 


Chap.  7.]  ARIZONA.  281 

x 

9.  That  he  is  about  to  remove  from  this  Territory  to  avoid  the 
ordinary  process  of  law. 

A  written  undertaking  is  required  on  behalf  of  the  plaintiff,  in 
a  sum  not  less  than  double  the  amount  claimed,  with  sufficient 
sureties,  to  the  effect  that  if  the  defendant  recover  judgment  the 
plaintiff  will  pay  all  costs  awarded  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  not  exceeding 
the  amount  specified  in  the  undertaking. 

In  Justices'  Courts,  an  attachment  may  be  issued  in  an  action 
upon  a  contract,  express  or  implied,  for  the  direct  payment  of 
money,  which  contract  is  made  or  is  payable  in  this  Territory,  and 
is  not  secured  by  a  mortgage  upon  real  or  personal  property. 

Upon  filing  with  the  justice  an  affidavit,  on  the  part  of  the 
plaintiff,  setting  forth  the  above  facts,  and  the  amount  of  such 
indebtedness  over  and  above  all  legal  set-offs  and  counter  claims ; 
and  upon  the  filing  of  an  undertaking  on  the  part  of  the  plaintiff, 
with  two  or  more  sufficient  sureties,  to  the  effect  that  if  the  defend- 
ant recover  judgment  the  plaintiff  will  pay  all  costs  awarded  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  the  writ  shall  issue. 


CHAPTER  VII. 

AKREST  IN  CIVIL  ACTIONS. 

The  defendant  may  be  arrested  in  the  following  cases  : 
1.  In  an  action  for  the  recovery  of  money  or  damages,  in  a  cause 
of  action  arising  upon  contract,  express  or  implied,  when  the  defend- 
ant is  about  to  depart  from  the  Territory  with  intent  to  defraud  his 
creditors  ;  or  when  the  action  is  for  willful  injury  to  person,  to  char- 
acter, or  to  property  known  to  belong  to  another. 


282  ARIZONA.  [Part  11. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied,  or  converted  to  his  own  use 
by  a  public  officer,  or  an  officer  of  a  corporation,  or  an  attorney, 
factor,  broker,  agent  or  clerk,  in  the  course  of  his  employment  as 
such,  or  by  any  other  person  in  a  fiduciary  capacity,  or  for  miscon- 
duct or  neglect  in  office,  or  in  a  professional  employment,  or  for  a 
willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property,  or  any  part  thereof,  has  been 
concealed,  removed,  or  disposed  of,  so  that  it  cannot  be  found  or 
taken  by  the  officer. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting 
the  debt  or  incurring  the  obligation  for  which  the  action  is  brought, 
or  in  concealing  or  disposing  of  the  property,  for  the  taking,  deten- 
tion, or  conversion  of  which  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

An  affidavit  is  required  on  behalf  of  the  plaintiff,  setting  forth 
the  grounds  of  arrest,  and  also  an  undertaking  with  sufficient  sure- 
ties, in  an  amount  of  at  least  five  hundred  dollars. 


CHAPTER  VIII. 

JUDGMENTS  AND  JUDGMENT  LIENS.  ; 

A  judgment  is  the  final  determination  of  the  rights  of  the  parties 
in  an  action  or  proceeding. 

Immediately  upon  the  docketing  of  a  judgment  it  becomes  a 
lien  upon  all  the  real  estate  of  the  judgment  debtor  not  exempt 
from  execution  in  the  county,  owned  by  him  at  the  time,  or  which 
he  may  afterwards  acquire,  until  the  lien  expires.  The  lien  con- 


Chap.  9.]  ARIZONA.  283 

tinues  two  years.  A  transcript  of  the  original  docket,  certified  by 
the  clerk,  may  be  filed  with  the  recorder  of  any  other  county,  and 
thereby  constitute  a  lien  upon  the  lands  of  the  judgment  debtor  in 
such  county. 


CHAPTER  IX. 

EXECUTIONS,   EXEMPTIONS,    SALE,    AND '  REDEMP- 
TION. 

Execution  may  be  issued  at  any  time  within  five  years  after  the 
entry  of  judgment.  Until  a  levy  is  made,  property  is  not  affected 
by  execution. 

The  following  property  is  exempt  from  execution  : 

1.  The  homestead,  consisting  of  a  quantity  of  land,  together 
with  the  dwelling  house  thereon  and  its  appurtenances,  and  the 
water  rights  and  privileges  pertaining  .thereto  sufficient  to  irrigate 
the  land,  not  exceeding  in  value  the  sum  of  five  thousand  dollars, 
allowed  to  the  head  of  a  family.     The  homestead  may  be  set  apart 
after  execution  levied. 

2.  All'  spinning-wheels,  weaving-looms  with  the  apparatus,  and 
stoves  put  up  and  kept  for  use  in  any  dwelling-house. 

3.  A  seat,  pew,  or  slip  occupied  by  such  person  or  family  in'  any 
house  or  place  of  public  worship. 

4.  All  cemeteries,  tombs,  and  rights  of  burial,  while  in  use  as 
repositories  of  the  dead. 

5.  All  arms  and  accoutrements  kept  for  use  ;  all  wearing  ap- 
parel of  every  person  or  family. 

6.  The  library  and  school  books  of  every  individual  and  family, 
not  exceeding  one  hundred  and  fifty  dollars,  and  all  family  pictures. 

7.  To  each  householder  ten  goats  or  sheep,  with  their  fleeces, 
and  the  yarn  or  cloth  manufactured  from  the  same  ;  two  cows,  five 


284  ARIZONA.  [Part  11. 

swine,  and  provisions  and  fuel  for  the  comfortable  subsistence 
such  household  and  family  for  six  months. 

8.  To  each  householder,  all  household  goods,  furniture  and  uten- 
sils, not  exceeding  in  value  six  hundred  dollars. 

9.  The  tools,  implements,  materials,  stock,  apparatus,  team,  ve- 
hicle, horses,  harness,  or  other  things  to  enable  any  person  to  carry 
on  the  profession,  trade,  occupation  or  business  in  which  he  is  wholly 
or  principally  engaged,  not  exceeding  in  value  six  hundred  dollars. 

10.  One  sewing  machine  and  one  musical  instrument. 

11.  A  sufficient  quantity  of  hay,  grain,  feed,  and  roots  for  prop- 
erly keeping  the  above  named  animals  three  months. 

An  execution  may  be  made  returnable  in  not  less  than  ten  nor 
more  than  sixty  days  after  its  receipt  by  the  sheriff. 
Notice  of  sale  must  be  given  as  follows  : 

1.  In  case  of  perishable  property,  a  reasonable  time. 

2.  In  case  of  personal  property,  not  less  than  five  nor  more  than 
ten  days. 

3.  In  case  of  real  property,  twenty  days. 

Upon  the  sale  of  real  property,  when  the  estate  is  less  than  a 
freehold  of  two  years  unexpired  term,  the  sale  shall  be  absolute. 
In  all  other  cases,  the  real  property  is  subject  to  redemption  within 
six  months  after  the  sale,  upon  paying  to  the  purchaser  the  amount 
of  the  purchase,  with  eighteen  per  cent,  in  addition,  and  all  taxes 
or  assessments  paid  by  the  purchaser. 


CHAPTER  X. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 

When  an  execution  is  returned  unsatisfied  in  whole  or  in  part, 
the  judgment  creditor,  at  any  time  after  such  return  is  made,  is  en- 
titled to  an  order  from  the  judge  of  the  Court,  requiring  such  judg- 


Chap.  11.]  ARIZONA.  285 

merit  debtor  to  appear  and  answer  concerning  his  property  before 
such  judge  or  a  referee  appointed. 


CHAPTER  XI. 


ESTATES  OF  DECEASED  PERSONS. 

Immediately  after  the  appointment  of  the  executor  or  adminis- 
trator, he  shall  give  notice  through  a  newspaper  published  in  the 
county,  if  there  be  one,  and  if  not,  then  in  such  newspaper  desig- 
nated by  the  Court,  requiring  all  persons  having  claims  against  the 
deceased  to  present  them,  with  the  necessary  vouchers,  within  ten 
months  after  publication  of  the  notice.  If  a  claim  be  not  presented 
within  the  ten  months,  it  shall  be  forever  barred  ;  however,  if  it  be 
not  then  due  or  is  contingent,  it  may  be  presented  within  ten 
months  after  it  shall  become  due  or  absolute ;  and  when  it  shall  be 
made  to  appear  by  the  affidavit  of  the  claimant,  to  the  satisfaction 
of  the  executor  or  administrator,  and  the  probate  judge,  that  the 
claimant  had  no  notice  by  reason  of  being  out  of  the  Territory,  it 
may  be  presented  at  any  time  before  a  decree  of  distribution  is  en- 
tered. Every  claim  presented  to  the  executor  or  administrator 
shall  be  supported  by  the  affidavit  of  the  claimant,  that  the  amount 
is  justly  due>  that  no  payments  have  been  made  thereon,  and  that 
there  are  no  offsets  to  the  same  to  the  knowledge  of  the  claimant 
or  other  affiant ;  provided,  that  when  the  affidavit  is  made  by  any 
other  person  than  the  claimant,  he  shall  set  forth  in  the  affidavit  the 
reason  it  is  not  made  by  the  claimant. 

The  affidavit  may  be  sworn  to  before  any  officer  authorized  to 
take  oaths. 

When  a  claim  is  presented  and  allowed  by  the  executor  or  ad- 
ministrator, it  shall  then  be  presented  to  the  probate  judge  for  his 


286  ARIZONA.  [Part  11. 

approval,  and  within  thirty  days  thereafter  filed  with  the  Probate 
Court. 

If  a  claim  be  founded  upon  a  bond,  note,  or  other  instrument, 
the  original  instrument  shall  be  presented.  If  the  claim  be  secured 
by  a  mortgage  or  other  lien,  such  mortgage  or  other  evidence  of 
liens  shall  be  attached  to  the  claim,  and  filed  therewith,  unless  the 
same  be  recorded  in  the  office  of  the  recorder  of  the  county  in 
which  the  land  lies,  in  which  case  it  shall  be  sufficient  to  describe 
the  mortgage  or  lien,  and  refer  to  the  date,  volume  and  page  of  its 
record.  In  all  cases  the  claimant  may  withdraw  his  claim  from 
file  on  leaving  a  certified  copy,  with  a  receipt  endorsed  thereon  by 
himself  or  agent. 

After  a  claim  is  rejected,  suit  must  be  brought  thereon-  within 
three  months  or  it  is  forever  barred  ;  if  it  be  not  then  due,  suit  must 
be  brought  within  three  months  from  the  time  it  falls  due.  An 
outlawed  claim  must  not  be  allowed. 

When  a  judgment  has  been  rendered  against  the  testator  or  in- 
testate in  his  life-time,  no  execution  shall  issue  thereon  after  his 
death  ;  but  a  certified  copy  of  such  judgment  shall  be  presented  to 
the  executor  or  administrator,  and  be  allowed,  and  filed  and  re- 
jected, as  any  other  claim,  but  need  not  be  supported  by  the  affi- 
davit of  the  claimant ;  and  if  justly  due  and  unsatisfied,  shall  be 
paid  in  due  course  of  administration  :  provided,  however,  that  if  the 
execution  shall  have  been  actually  levied  upon  any  property  of  the 
deceased,  the  same  may  be  sold  for  the  satisfaction  thereof,  and 
the  officer  making  the  sale  shall  account  to  the  executor  or  admin- 
istrator for  any  surplus  in  his  hands.  The  executor  or  adminis- 
trator may,  however,  require  the  affidavit  of  the  claimant,  or  other 
satisfactory  proof,  that  the  judgment,  or  any  portion  thereof,  is 
justly  due  and  unsatisfied. 


Chaps.  12,  13.]  ARIZONA.  287 


CHAPTER  XII. 

AFFIDAVITS  AND  DEPOSITIONS. 

An  affidavit  taken  in  another  State  or  Territory,  to  be  used  in 
this  Territory,  shall  be  taken  before  a  commissioner  appointed  by 
the  Governor  of  this  Territory  to  take  affidavits  and  depositions  in 
such  State  or  Territory,  or  before  any  judge,  or  notary  public,  or 
clerk  of  a  Court  having  a  seal ;  when  taken  before  a  judge  the 
genuineness  of  the  judge's  signature,  the  existence  of  the  Court, 
and  the  fact  that  such  judge  is  a  member  thereof,  shall  be  cer- 
tified by  the  clerk  of  the  Court  under  the  seal  thereof. 

The  deposition  of  a  witness  out  of  the  Territory  may  be  taken 
in  an  action  at  any  time  after  the  service  of  the  "summons  or  .the 
appearance  of  the  defendant.  It  shall  be  taken  under  a  commission 
issued  from  the  Court  under  the  seal  of  such  Court.  It  shall  be 
issued  to  a  person  agreed  upon  by  the  parties,  or  if  they  do  not 
agree,  to  any  judge  or  justice  of  the  peace  selected  by  the  officer 
granting  the  commission,  or  to  a  commissioner  appointed  by  the 
Governor  of  this  Territory  to  take  affidavits  and  depositions.  The 
deposition  must  be  returned  in  a  sealed  envelope,  directed  to  the 
clerk  or  other  person  designated  or  agreed  upon,  by  mail  or  other 
usual  channel  of  conveyance. 


CHAPTER   XIII. 

ACKNOWLEDGMENTS. 

The  proof  or  acknowledgment  of  every  conveyance  affecting  any 
real  estate  shall  be  taken  by  some  one  of  the  following  officers  : 
1.  If  acknowledged  or  proved  within  this  Territory,   by   some 


288  ARIZONA.  [Part  11. 

judge  or  clerk  of  a  Court  having  a  seal,  or  some  notary  public,  or 
justice  of  the  peace  of  the  proper  county. 

2.  If  acknowledged  or  proved  without  this  Territory,  and  with- 
in the  United  States,  by  some  judge  or  clerk  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  having  a  seal,  or  by 
any  commissioner  appointed  by  the  Governor  of  this  Territory  for 
that  purpose. 

3.  If  acknowledged  or  proved  without  the  United  States,  by 
some  judge  or  clerk  of  any  Court  of  any  State,  Kingdom,  or  Em 
pire  having  a  seal,  or  by  any  notary  public  therein,  or   by  any 
minister,  commissioner,  or  consul  of  the  United  States  appointed 
to  reside  therein. 

Every  officer  who  shall  take  the  proof  or  acknowledgment  of 
any  conveyance  affecting  any  real  estate,  shall  grant  a  certificate 
thereof,  and  cause  such  certificate  to  be  indorsed  or  annexed  to 
such  conveyance.  Such  certificate  shall  be  : 

1.  When  granted  by  any  judge  or  clerk — under  the  hand  of  such 
judge  or  clerk. 

2.  When  granted  by  an  officer  who  has  a  seal  of  office — under 
the  hand  and  official  seal  of  such  officer. 

The  certificate  of  such  acknowledgment  shall  state  the  fact  of 
acknowledgment,  and  that  the  person  making  the  same  was  person- 
ally known  to  the  officer  granting  the  certificate  to  be  the  person 
whose  name  is  subscribed  to  the  conveyance  as  a  party  thereto,  or 
was  proved  to  be  such  by  the  oath  or  affirmation  of  a  credible  wit- 
ness, whose  name  shall  be  inserted  in  the  certificate. 

A  married  woman  may  convey  her  real  estate,  her  husband  join- 
ing in  the  conveyance.  No  acknowledgment  to  be  made  by  a 
married  woman, unless  she  be  personally  known  to  the  officer  taking 
the  same  to  be  the  person  whose  name  is  subscribed  to  such  convey- 
ance as  a  party  thereto,  or  shall  be  proved  to  be  such  by  a  credible 
witness  ;  nor  unless  such  married  woman  shall  be  made  acquainted 
with  the  contents  of  such  conveyance,  and  shall  acknowledge  on  an 
examination,  apart  from  and  without  the  hearing  of  her  husband, 
that  she  executed  the  same  freely  and  voluntarily,  without  fear  or 
compulsion,  or  undue  influence  of  her  husband,  and  that  she  does 
not  wish  to  retract  the  execution  of  the  same. 


Chaps.  14,  15.]  ARIZONA.  289 


CHAPTER  XIV. 

MARRIED  WOMEN. 

All  property,  both  real  and  personal,  of  the  wife,  owned  by  her 
before  marriage,  and  that  acquired  afterwards  by  gift,  bequest,  de- 
vise, or  descent,  shall  be  her  separate  property,  and  is  not  subject 
to  the  debts  of  her  husband. 

All  property  acquired  after  marriage,  by  either  husband  or 
wife,  except  such  as  may  be  acquired  by  gift,  bequest,  devise,  or 
descent,  shall  be  common  property. 

The  separate  property  of  the  husband  is  not  liable  for  the  debts 
of  the  wife  contracted  before  marriage,  but  the  separate  property 
of  the  wife  shall  be  and  continue  liable  for  all  such  debts. 


CHAPTER   XV. 

CHATTEL  MORTGAGES. 

Chattel  mortgages  may  be  made  on  the  following  property,  viz  : 
Upholstery  and  furniture  used  in  hotels  and  public  boarding 
houses,  when  mortgaged  to  secure  the  purchase  money  of  the  iden- 
tical articles  mortgaged,  and  not  otherwise  ;  saw  mill,  grist  mill, 
and  steamboat  machinery ;  tools  and  machinery  used  by  machin- 
ists, foundry  men,  and  other  mechanics ;  steam  boilers,  steam 
engines,  locomotives,  engines,  and  the  rolling  stock  of  railroads ; 
printing  presses  and  other  printing  material ;  instruments  and 
chests  of  a  surgeon,  physician,  or  dentist ;  libraries  of  all  persons  ; 

19 


290  ARIZONA.  [Part  11. 

machinery  and  apparatus  for  mining  purposes;  growing  crops, 
grain  in  store  or  field  ;  teams  and  implements  pertaining  to  farm- 
ing ;  stock  of  all  kinds  on  farm. 

No  chattel  mortgage  made  shall  have  any  legal  force  or  effect, 
(except  between  the  parties  thereto)  unless  the  residence  of  the 
mortgagor  and  mortgagee,  their  profession,  trade,  or  occupation, 
the  sum  to  be  secured,  the  rate  of  interest  to  be  paid,  when  and 
where  payable,  shall  be  set  out  in  the  mortgage  ;  and  the  mort- 
gagor and  mortgagee  shall  make  affidavit  that  the  mortgage  is 
bona  fide,  and  without  any  design  to  defraud  or  delay  creditors, 
which  affidavit  shall  be  attached  to  such  mortgage. 

Mortgage  riot  valid  as  to  third  parties,  unless  duly  recorded,  or 
unless  the  mortgagee  receives  and  retains  the  actual  possession  of 
the  property. 


CHAPTER  XVI. 

INTEREST. 

When  there  is  no  express  agreement  fixing  a  different  rate  of 
interest,  interest  shall  be  allowed  at  the  rate  of  ten  per  cent,  per 
annum,  on  all  moneys  after  they  become  due  on  any  bond,  bill, 
promissory  note,  or  other  instrument  of  writing,  or  any  judgment 
recovered  before  any  Court  in  this  Territory  for  money  lent,  for 
money  due  on  the  settlement  of  accounts  from  the  day  on  which 
the  balance  is  ascertained,  and  for  money  received  for  the  use  of 
another. 

Parties  may  agree,  in  writing,  for  the  payment  of  any  rate  of 
interest  whatever  on  money  due  or  to  become  due  on  any  contract ; 
any  judgment  rendered  on  such  contract  shall  conform  thereto,  and 
shall  bear  the  interest  agreed  upon  by  the  parties,  and  which  shall 
be  specified  in  the  judgment. 

Parties  may  agree,  in  writing,  to  compound  interest. 


Chap.  17.]  ARIZONA.  291 

CHAPTER  XVII. 

BILLS   OF  EXCHANGE. 

Three  days'  grace  allowed  on  notes  and  bills,  except  sight  drafts. 

The  rate  of  damages  to  be  allowed  and  paid  upon  the  usual, 
protest  for  the  non-payment  of  bills  of  exchange,  drawn  or 
negotiated  within  this  Territory,  shall  be  as  follows : 

1.  If  such  bill  shall  have  been   drawn   upon   any  person  or 
persons  in  any  of   the  United  States  or  Territories  east  of  the 
Rocky  Mountains,  fifteen   dollars   upon   the   hundred   upon   the 
principal  sum  specified  in  such  bill. 

2.  If  such  bill  shall  have  been  drawn  on  any  person  or  persons 
in  any  port  or  place  in  Europe  or  any  foreign  country,  twenty 
dollars  upon  the  hundred  upon  the  principal  sum  specified  in  such 
bill. 

Such  damages  shall  be  in  lieu  of  interest,  ch'arges  of  protest, 
and  all  other  charges  incurred  previous  to  and  at  the  time  of  - 
giving  notice  of  non-payment ;  but  the  holder  of  such  bill  shall  be 
entitled  to  demand  and  recover  lawful  interest  upon  the  aggregate 
amount  of  the  principal  sum  specified  in  such  bill  and  of  the 
damages  thereon,  from  the  time  notice  of  protest  for  non-payment 
shall  have  been  given,  and  payment  of  such  principal  sum  shall 
have  been  demanded. 


PART  XII. 


BRITISH  COLUMBIA 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  M.  W.  T.  DRAKE,  VICTORIA. 


CHAPTER  I. 

COURTS— THEIR  JURISDICTION  AND  TERMS. 

The  Supreme  Court  is  presided  over  by  a  chief  justice  and  two 
pusne  judges.  This  Court  exercises  a  legal  and  equitable  juris- 
diction in  all  matters.  It  has  sole  control  over  the  estate  of  infants, 
lunatics  and  deceased  persons,  and  claims  a  jurisdiction  in  divorce 
and  matrimonial  causes.  The  admiralty  jurisdiction  of  the  Prov- 
ince is  vested  in  the  chief  justice  alone.  It  is  the  Court  of  Ap- 
peal from  all  inferior  tribunals,  and  from  it  there  is  an  appeal  to 
the  Supreme  Court  of  Canada  and  Privy  Council  of  England. 

The  judges  also  sit  as  judges  of  assize  for  the  trial  of  criminals. 

The  Court  holds  three  terms  annually  for  the  purpose  of  dispos- 
ing of  law  points  reserved  at  trials,  for  hearing  motions  for  new 
trials,  appeals,  special  cases,  etc.,  etc.  These  sittings  are  held  at 
Victoria,  and  the  terms  are  held  in  February,  April,  and  No- 
vember. 


294  BRITISH  COLUMBIA.  [Part  12. 

For  matters  of  procedure  the  judges  sit  constantly. 

The  Assize  Courts  are  held  three  times  a  year,  for  the  trial  of 
prisoners  and  civil  causes  with  a  jury.  The  Assize  Courts  are 
held  all  through  the  Province,  the  judges  going  on  circuit  for  the 
purpose. 

All  matters  not  jury  cases  are  disposed  of  by  the  Court  on  ap- 
plication. 

The  County  Court  is  held  for  the  trial  of  actions  of  debt  or 
damage  up  to  $ 500.  Actions  of  ejectment,  libel,  false  imprison- 
ment, and  some  others,  are  excluded  from  the  cognizance  of  these 
courts.  ' 

This  Court  is  held  every  month,  and  disposes  of  the  cases  brought 
before  it  without  pleadings,  and  in  a  summary  and  expeditious 
manner.  The  province  is  divided  into  six  districts  for  this  purpose. 

The  justices  of  the  peace  have  no  civil  jurisdiction.  All  prisoners 
have  to  be  committed  by  the  justices  before  they  can  be  tried.  At 
the  assizes,  and  after  committal,  the  case  goes  before  the  grand 
jury,  and  if  a  true  bill  is  found  the  prisoner  is  put  on  his  trial ;  if 
no  bill  is  found  he  is  at  once  discharged. 

The  municipalities  have  also  a  limited  jurisdiction  for  enforcing 
their  by-laws. 


CHAPTER  II. 

COMMENCEMENT   OF  SUITS. 

i 

Civil  suits  in  the  Supreme  Court  are  commenced  by  writ  of  sum- 
mons, to  which  the  defendant  has  to  appear  in  eight  days ;  if  he 
fails  to  appear  after  due  service,  the  plaintiff  signs  judgment  for 
his  debt ;  if  he  appears,  the  plaintiff  proceeds  to  state  his  cause  of 
action  in  a  pleading  called  a  declaration,  to  which  the  defendant  re- 
plies by  a  plea,  and  in  the  majority  of  cases  the  action  being  thus 


Chap.  3.]  BRITISH  COLUMBIA.  295 

put  in  issue  is  set  down  for  trial ;  but  any  neglect  of  the  defend- 
ant to  proceed  according  to  the  rule,  subjects  him  to  the  penalty 
of  having  judgment  signed  against  him.  In  some  cases  the  plead- 
ings extend  considerably  beyond  this,  until' at  last  they  arrive  at 
issue  and  are  then  ripe  for  trial. 

Sometimes,  by  consent,  a  special  case  is  stated  and  tried  by  the 
judge  without  a  jury.  In  any  case,  if  both  parties  consent,  the 
judge  alone  can  dispose  of  the  case  without  a  jury. 

In  actions  on  bills  of  exchange  and  promissory  notes,  if  brought 
within  six  months  of  the  due  date  of  the  bill  or  note,  the  defendants 
are  not  allowed  to  defend  except  on  special  ground  shown  in  affi- 
davits. 

All  writs  must  be  personally  served,  unless  the  defendant  is  keep- 
ing out  of  the  way  to  avoid  service,  and  then  the  Court  allows  sub- 
stituted service.  If  the  defendant  is  abroad,  whether  a  foreigner 
or  not,  special  forms  of  writ  are  provided,  but  the  service  must  be 
personal. 

In  equity  cases  proceedings  are  commenced  by  bill  of  complaint, 
being  a  narrative  of  the  circumstances  on  which  the  plaintiff  relies 
for  relief.  The  defendant  has  a  month  to  answer,  and  after  answer 
there  are  several  different  modes  of  bringing  the  suit  to  a  hearing. 
The  evidence  is  generally  taken  on  affidavit,  but  may  be  viva  voce. 
A  single  judge  disposes  of  equity  cases  without  a  jury. 

Equity  suits  can  be  disposed  of  at  any  place  the  plaintiff  fixes  ; 
liable  to  be  changed  on  good  cause  shown. 


CHAPTER  III. 

LIMITATIONS  OF  ACTIONS. 

Six  years  is  the  limitation  for  all  simple  contract  debts ;  twenty 
years  for  all  specialty  debts.  In  case  the  cause  of  action  arose  in 
a  foreign  country,  the  defendant  may  plead  the  statute  of  limita- 


296  BRITISH   COLUMBIA.  [Part  12. 

tions  of  such  country  as  a  bar.  A  foreign  judgment  is  placed  on 
the  same  footing  as  a  simple  contract  debt,  and  has  to  be  sued 
within  the  same  time. 


CHAPTER  IV. 

ATTACHMENTS— ARREST  IN  CIVIL  ACTIONS. 

Attachments  are  not  allowed  except  under  the  Insolvency  Act, 
and  then  it  practically  binds  the  property  for  the  benefit  of  all 
creditors. 

Arrest  in  civil  actions  is  in  practice  only  resorted  to  for  the  pur- 
pose of  compelling  a  defendant  who  is  about  to  leave  the  jurisdic- 
tion to  give  security  for  the  alleged  debt.  The  sheriff  keeps  him 
in  charge  until  he  has  put  in  security,  or  until  the  trial  of  the 
writ.  There  is  no  imprisonment  for  debt.  But  the  County  Court 
judges  have  power  of  committal  for  disobedience  of  orders  for  pay- 
ment of  money. 


CHAPTER  V. 

JUDGMENTS  AND  JUDGMENT   LIENS. 

A  judgment  binds  the  lands  of  a  debtor  when  registered.  It 
also  enables  a  creditor  to  seize  the  goods  of  his  debtor,  or  to  com- 
pel payment  of  debts  due  to  the  debtor,  to  himself,  under  what  are 


Chaps.  6,  7.]  BRITISH  COLUMBIA.  297 

called  garnishee  proceedings  ;  but  a  judgment  does  not  bind  the 
personal  property  of  the  debtor  until  the  writ  of  execution  is  in  the 
hands  of  the  sheriff. 


CHAPTER  VI. 

EXECUTIONS,  EXEMPTIONS,  KEDEMPTION,   SALE. 

Executions  are  enforced  against  the  land  and  personalty  of  the 
debtor. 

The  debtor  is  entitled  to  an  exemption  of  five  hundred  dollars  in 
personalty. 

For  homestead  exemption,  see  "  Homesteads." 

The  debtor  may  redeem  his  property  at  any  time  before  sale. 
Personal  property  has  to  be  sold  without  any  delay,  and  by  public 
auction.  Real  property  is  advertised  thirty  days. 


CHAPTER  VII. 

SECURITY  FOR  COSTS 

Is  always  required  when  the  plaintiff  is  resident  out  of  the  juris- 
diction of  the  Court,  in  an  amount  of  five  hundred  dollars  ;  but  if 
within  the  jurisdiction,  he  may  commence  actions  in  forma  pau- 
isj  if  he  is  not  in  a  position  to  pay  fees. 


298  BRITISH  COLUMBIA.  [Part  12. 


CHAPTER  VIII. 

APPEALS 

Are  allowed  from  the  County  Courts  to  the  Supreme  Court,  if 
made  within  forty-eight  hours  after  the  decision  is  objected  to  ; 
from  the  Police  and  Magistrate  Courts  to  the  Supreme  Court,  if 
applied  for  in  four  days ;  from  the  Supreme  Court  to  the  Privy 
Council  of  England,  or  the  Supreme  Court  of  Canada,  if  the 
amount  in  dispute  is  over  fifteen  hundred  dollars.  Security  re- 
quired is  five  hundred  dollars. 


CHAPTER  IX. 

ESTATES  OF  DECEASED  PERSONS. 

Intestate  estates,  where  there  is  no  next  of  kin  or  creditor  who 
desires  administration,  are  managed  by  the  registrar  of  the  Supreme 
Court  as  official  administrator.  There  is  no  statuteable  time  for 
sending  in  claims,  but  every  estate  is  advertised  and  a  time  fixed. 
The  claims  have  to  be  sworn  to — if  from  a  foreign  country,  before  a 
notary  public,  attested  by  the  British  ambassador,  consul,  or  charge 
d'affaires.  Twelve  months  is  the  time  allowed  to  settle  the  estate, 
whether  the  deceased  died  intestate  or  not.  If  the  deceased  left  a 
will  legally  executed,  his  executors  manage  the  estate  without 
filing  any  security,  and  only  file  accounts  at  the  end  of  the  twelve 
months.  If  they  neglect  their  duty,  the  devisees  have  a  legal  re- 
medy, but  the  Court  does  not  control  them. 


Chaps.  10-12.]  BRITISH  COLUMBIA.  299 


CHAPTER  X. 

HOMESTEADS. 

Land  to  the  value  of  twenty-five  hundred  dollars  may  be  home 
stead,  if  duly  registered  as  such  at  a  time  when  the  owner  was  free 
from  debt. 


CHAPTER  XI. 

DEPOSITIONS. 

For  matters  in  civil  suits,  evidence  abroad  is  generally  taken  by 
commissioners  appointed  by  a  judge  of  the  Supreme  Court.  In 
other  matters,  affidavits  can  be  taken  before  any  minister,  ambassa- 
dor, consul,  vice-consul,  or  consular  agent,  and  if  there  is  no  one 
representing  these  functionaries,  then  before  a  notary  public  duly 
certified  to  be  such  by  the  Governor  or  Secretary  of  State. 


CHAPTER  XII. 

JUDICIAL  RECORDS— ACKNOWLEDGMENTS. 
/ 

Judicial  records  of  foreign  States  can  be  proved  by  examined 
copies,  sealed  with  the  seal  of  the  State  if  relating  to  State  docu- 
ments, or  the  seal  of  the  Court  if  relating  to  judicial  records. 

Acknowledgments'  of  deeds  can  be  taken  before  a  notary  pub- 
lic,.duly  certified  to  be  such  by  the  British  consul. 


300  BRITISH   COLUMBIA.  [Part  12. 


CHAPTER  XIII. 


LIMITED  PARTNERSHIPS. 

Joint  stock  companies  can  limit  the  liability  of  their  sharehold- 
ers to  the  amount  subscribed  for  by  each,  by  registering  under  the 
statute. 

The  law  of  private  partnerships  now  allows  a  person  to  invest 
money  in  a  business  concern  and  receive  a  share  of  the  profits,  with- 
out being  liable  as  a  partner. 


CHAPTER  XIV. 


MARRIED   WOMEN 

Can  invest  the  money  earned  by  any  trade  or  occupation,  and 
the  same  is  free  from  the  debts,  control  or  engagements  of  the  hus- 
band ;  and  landed  property,  held  before  marriage  or  acquired  sub- 
sequent thereto,  can  be  dealt  with  by  a  married  woman  as  if  she 
were  a  femme  sole. 


Chaps.  15, 16.]  BRITISH  COLUMBIA.  301 

• 

CHAPTER  XV. 

• 

MORTGAGES. 

['  Chattel  mortgages  must  be  registered  within  twenty-one  days 
after  execution,  and  an  affidavit  filed  of  the  day  and  date  of  execu- 
tion, in  order  to  protect  the  property  from  execution  creditors  of  the 
grantor.  A  mortgage  unregistered  is  good  between  the  parties,  and 
if  the  mortgagee  take  the  property  into  his  own  custody  an  execu- 
tion creditor  cannot  seize  it.  Furniture,  goods,  merchandise,  etc., 
can  be  mortgaged.  Farming  stock  and  crops  are  not  subject  to  the 
Act. 

MORTGAGES  OF  LAND. 

A  mortgagee  of  land  is  a  specialty  creditor ;  he  can  sue  his 
debtor  for  the  amount  due,  sell  the  mortgage  property,  or  foreclose 
the  mortgage ;  if  he  sells  the  mortgage  property,  it  is  doubtful 
whether  his  remedy  against  the  mortgagor  has  not  gone,  in  case 
the  sale  fails  to  realize  the  whole  amount  due. 


CHAPTER   XVI. 


INTEREST  AND  USURY. 

The  legal  rate  of  interest  is  twelve  per  cent,  per  annum.  All 
judgments  carry  this  rate  ;  so  do  accounts,  after  notice  that  inter- 
est will  be  charged ;  but  any  higher  rate  of  interest  is  perfectly 
legal,  as  there  are  no  usury  laws  in  force. 


302  BRITISH   COLUMBIA.  [Part  12. 


CHAPTER   XVII. 

• 

LAND  LAWS. 

Persons  can  acquire  land  (three  hundred  and  twenty  acres)  by 
pre-emption,  and  on  a  survey  being  made,  a  grant  in  fee  simple  is 
issued  without  charge. 


INDEX 


INDEX. 


PART  XI 


PAGE. 

Acknowledgments 387 

Affidavits 287 

Answer — Time  Allowed 275 

Arrest  in  Civil  Actions 281 

Attachments , 280 

Bills  of  Exchange , 291 

Chattel  Mortgages 289 

Commencement  of  Suits 275 

Courts 273 

"      Terms  of 274 

"      Their  Jurisdiction 273 

"     Where  held....,, .f 274 

Deceased  Persons — Estates  of 285 

Depositions ,    . .  287 

Estates  of  Deceased  Persons 285 

Examination  of  Judgment  Debtor '. 284 

Executions 283 

Exemptions  from  Execution 283 

Interest 290 

Judgments 282 

Judgment  Liens • 282 

Jurisdiction  of  Courts 273 

Liens  of  Judgments 282 

Limitation  of  Actions 278 

Married  Women 289 

20 


306  INDEX. 

PAGE. 

Mortgages  of  Personal  Property • 289 

Place  of  Trial  of  Civil  Actions 276 

Proceedings  Supplementary  to  Execution 284 

Promissory  Notes — Days  of  Grace 291 

Redemption 283 

Sale-r-Under  Execution 283 

Terms  of  Courts 274 

Time  Allowed  to  Answer 275 

Trial— Place  of..  ..276 


PART  I. 


Arizona 18 

British  Columbia 18 

California 11 

Idaho 17 

Montana 17 

Nevada 15 

Oregon 15 

Utah 16 

Washington 16 

Wyoming 18 


BRITISH 

PART  XII 


Acknowledgments ..' 299 

Affidavits 299 

Appeals 298 

Arrest  in  Civil  Actions 296 

Attachments 296 


INDEX.  307 

PAGE. 

Chattel  Mortgages 301 

Commencement  of  Suits 294 

Courts ..293 

"      Terms  of 293 

"      Their  Jurisdiction 293 

Deceased  Persons — Estates  of 298 

Depositions 299 

Estates  of  Deceased  Persons 298 

Executions 297 

Exemptions  from  Execution 297 

Homesteads 299 

Interest 301 

Joint  Stock  Companies 300 

Judgments 296 

Judgment  Liens 296 

Judicial  Records 299 

Jurisdiction  of  Courts 293 

Land  Laws 302 

Liens  of  Judgments 296 

Limited  Partnerships 300 

Limitations  of  Actions 295 

Married  Women ,  ,...300 

Mortgages 301 

Mortgages  of  Land „ 301 

Partnerships — Limited 300 

Pleadings 294-295 

Redemption 297 

Sale— Under  Execution , 297 

Security  for  Costs 297 

Terms  of  Courts 293 

Time  for  Appearance 294 

Usury 301 


PART  III. 


Acknowledgments. 102 

Acknowledgments — Forms  of 103 

Affidavits 99 

Agent  and  Principal 129 


308  INDEX. 

PAGE. 

Answer — Time  Allowed 43 

Answer — Time  Allowed  in  Justice's  Court 44 

Appeals  iir  General , 77 

Appeals  from  District  Court 79 

Appeals  from  County  Courts 79 

Appeals  from  Probate  Courts 80 

Appeals  from  Justices'  or  Police  Courts 80 

Arbitrations 95 

Arrest  and  Bail • 58 

Attachments '. 51 

Assignment  without  Prejudice  to  Set-off  or  Defense 42 

Bail — see  Arrest  and  Bail 58 

Bills  of  Exchange — see  Negotiable  Instruments 121 

Bills  of  Lading 112 

Certificate  of  Sale  of  Real  Estate 71 

Chattel  Mortgages 114 

Claim  and  Delivery  of  Personal  Property 56 

Compromise — Proceedings  on  offer  of  Defendant 64 

Commencement  of  Actions 42 

Common  Carriers 113 

Complaint,  on  Whom  to  be  Served 43 

Confession  of  Judgments 62 

Contracts 120 

Corporations 97 

Costs 76 

Courts ....29 

"      their  Jurisdiction 28 

"      "When  and  Where  Held 32 

Currency  Judgments 64 

Deceased  Persons — Estates  of , 83 

Depositions 99 

Descents 88 

Estates  of  Deceased  Persons 83 

Examination  of  Judgment  Debtor 74 

Executions 67 

Executions — Proceedings  Supplementary  to 74 

Exemptions  from  Execution 68 

Form  of  Civil  Actions 46 

Gold  Coin  Judgments , 64 

Guaranty  and  Suretyship 117 

Homesteads 95 

Injunctions 60 

Interest 112 

Joint  Debtors — Proceedings  against 63 

Judgments 60 

Judgments  after  Verdict 63 

Judgments  by  Confession 62 

Judgment  by  Default  in  Justice's  Court 65 


INDEX.  309 

PAGE. 

Judgments  in  Justices'  Courts 65 

Judgments  in  Justices'  Courts  other  than  by  Default 66 

Judgments  in  Replevin 64 

Judgment  Liens 65 

Judgment  Liens,  Justices'  Courts 67 

Judgment  on  Proceedings  without  Action 63 

Judgment  on  Failure  to  Answer 61 

Judicial  Records 100 

Judicial  Records — How  Proved: 101 

Jurisdiction  of  Courts ' 29 

Letter  of  Credit 119 

Liens  for  Salaries  and  Wages 94 

Liens  of  Mechanics  and  others  upon  Real  Estate 91 

Limitation  of  Civil  Actions 39 

Married  Women 108 

Mechanics'  Liens 91 

Minors • 110 

Mode  of  taking  Testimony  of  Witnesses 99 

Mortgages  of  Personal  Property 114 

Negotiable  Instruments 121 

New  Trials 82 

Parties  to  Suits 42 

Partnerships 105 

Personal  Property — Mortgages  of 114 

Place  of  Trial,  Civil  Actions 35 

Pleadings , 46 

Pleadings — Provisions  in  Justices'  Courts 49 

Pledge, 116 

Principal  and  Agent 129 

Proceedings  on  Offer  of  Defendant  to  Compromise 64 

Proceedings  Supplementary  to  Execution 74 

Promissory  Notes,  see  Negotiable  Instruments 121 

Publication — Service  by 44—45 

Redemption 71 

Replevin — see  Claim  and  Delivery 56 

Replevin — Judgment  in 64 

Salaries — Liens  for 94 

Sale 119 

Sale  of  Real  Estate — when  Absolute  or  not 71 

Sale  of  Real  Estate— Certificate  of 71 

Sale  on  Execution 70 

Security  for  Costs 76 

Service  by  Publication 44-45 

Sole  Traders '. 109 

Stoppage  in  Transit « Ill 

Submission  of  Controversy  Without  Action 63 

Summons — on  Whom  to  be  Served 43 

Summons — on  Whom  to  be  Served  in  Justices'  Courts 45 


310  INDEX. 


PAGE. 

Summons — Service  When  to  be  Made  in  Justices'  Courts 45 

Summons — Service  by  Whom  Made  in  Justices'  Courts 45 

Summons — Who  may  Serve 43 

Summons — Within  What  Time  to  Issue 43 

Suretyships 117 

Terms  of  Courts 32 

Circuit  Court  U.  S 35 

District  Courts 33 

District  Court  U.  S 35 

Justices'  Courts 35 

Probate  and  County  Courts 34 

Supreme  Court 32 

Testimony  of  Witnesses  by  Affidavit 99 

Time  of  Holding  Courts , 32 

Trial  of  Civil  Action— When  to  be  Tried 35 

Verification  of  Pleadings 49 


PART  VII. 


Acknowledgments 215 

Affidavits— Before  Whom  to  be  Taken 220 

Answer— Time  Allowed 199 

Appeals 209 

Arrest  in  Civil  Actions 203 

Attachments 202 

Chattel  Mortgages 219 

Commencement  of  Actions 198 

Corporations 218 

Courts 197 

Courts— Terms  of 197 

Courts— Their  Jurisdiction 197 

Deceased  Persons— Estates  of 210 

Depositions 213 

Estates  of  Deceased  Persons 210 

Examination  of  Judgment  Debtor 208 

Executions 205 

Exemptions  from  Execution 205 

Homesteads..  210 


INDEX.  311 

PAGE. 

Interest  and  Usury 219 

Judgments 204 

Judgment  Liens 204 

Judicial  Records 214 

Jurisdiction  of  Courts 197 

Liens  of  Judgments 204 

Limitation  of  Civil  Actions 200 

Limited  Partnerships 216 

Married  Women 217 

Mortgages  of  Personal  Property 219 

Partnerships — Limited 216 

Place  of  Trial  of  Civil  Actions 199 

Proceedings  Supplementary  to  Execution 208 

Redemption 207 

Sales — Under  Execution 207 

Security  for  Costs 208 

Sole  Traders 220 

Terms  of  Courts  197 

Time  allowed  to  Answer 199 

Trial— Place  of 199 

Usury 219 


JURISDICTION  OF  U.  S.  COURTS  AND  BANKRUPTCY. 

PART  II. 


Acts  of  Bankruptcy — Involuntary 21 

Bankruptcy 21 

Composition 27 

Courts 19 

Courts — Their  Jurisdiction 19 

Debts— Proof  of , 24 

Discharge 25 

Fraudulent  Conveyances 22 

Involuntary  Bankruptcy — Acts  of 21 

Judgment  Lien 25 

Jurisdiction  of  Courts 19 

Liens 25 

Percentage  to  be  Paid  by  Bankrupt 23 

Petition— Verification  of '. 22 

Petition— Who  to  Join  In . .  22 


312  INDEX. 

PAGE. 

Preferences  and  Fraudulent  Conveyances 22 

Proof  of  Debts 24 

Verification  of  Petition 22 

Voluntary  Bankruptcy — Who  may  File  Petition 22 


PART  IX. 


Acknowledgments 249 

Answer — Time  Allowed 242 

Appeals 247 

Arrest  in  Civil  Actions 245 

Attachments 244 

Chattel  Mortgages 251 

Corporations 250 

Courts 241 

Courts— Terms  of 241 

Courts  and  their  Jurisdiction 241 

Deceased  Persons— Estates  of 248 

Depositions 248 

Estates  of  Deceased  Persons 248 

Examination  of  Judgment  Debtor 247 

Executions 245 

Exemption  from  Execution 245 

Homesteads 248 

Interest 251 

Judgment  Liens 245 

Judicial  Records 249 

Jurisdiction  of  Courts 241 

Liens  of  Judgments 245 

Limitation  of  Actions .«. 243 

Limited  Partnerships 249 

Married  Women 250 

Partnerships— Limited • : 249 

Place  of  Trial  of  Civil  Actions 242 

Proceedings  Supplementary  to  Execution 247 

Redemption ' 246 

Sale  under  Execution 246 

Security  for  Costs.' 247 

Terms  of  Courts . .  241 


INDEX.  313 

PAGE. 

Time  allowed  to  Answer 242 

Trial,  Place  of 242 

Usury ..251 


PART  IT. 


Acknowledgments 149 

Affidavits— before  Whom  to  be  Taken 150 

Answer — Time  Allowed 134 

Appeals 142 

Arrest  in  Civil  Actions 137 

Attachments 137 

Bills  of  Exchange 154 

Chattel  Mortgages 153 

Courts 131 

Courts— Terms  of 131 

Courts — Their  Jurisdiction 131 

Corporations , 152 

Daceased  Persons — Estates  of .- 143 

Depositions .' 145 

Depositions  Taken  Out  of  the  State 147 

Estates  of  Deceased  Persons 143 

Examination  of  Judgment  Debtor 141 

Exemptions  from  Execution 139 

Executions 139 

Homesteads 144 

Interest  and  Usury 153 

Jurisdiction  of  Courts 131 

Judgments  and  Judgment  Liens 138 

Judicial  Records — How  Proved 148 

Liens  of  Judgments » 138 

Limitation  of  Actions  ....*..»...> 135 

Limited  Partnerships «,  * 151 

Married  Women * 152 

Mortgages  of  Personal  Property 153 

Mortgages  of  Real  Property 154 

Partnerships — Limited 151 

Place  of  Trial 134 

Proceedings  Supplementary  to  Executions 141 

21 


314  INDEX. 

PAGE. 

Promissory  Notes 154 

Publication — Service  by > 134 

Redemption 141 

Sale  under  Execution 141 

Security  for  Costs 142 

Service  by  Publication 134 

Terms  of  Courts 131 

Time  allowed  to  Answer 134 

Trial— Place  of 134 

Usury 153 

Witnesses..  ..145 


OREGON. 
PART  V. 


Acknowledgments 171 

Actions — Commencement  of 158 

Actions— Place  of  Trial , 159 

Answer— Within  What  Time 158 

Appeals 165 

Arrest  in  Civil  Actions 161 

Attachments 161 

Chattel  Mortgages 174 

Commencement  of  Suits 158 

Courts  and  Jurisdiction 155 

Courts— Terms  of 156 

Corporations 174 

Deceased  Persons — Estates  of 166 

Depositions 169 

Descent  of  Personal  Property 168 

Descent  of  Real  Property 167 

Dower 168 

Estates  of  Deceased  Persons 166 

Examination  of  Judgment  Debtor 164 

Executions 163 

Exemptions  from  Execution 163 

Homesteads 169 

Interest ..175 

Judgment  Liens 162 

Judicial  Records , 171 


INDEX.  315 

PAGE. 

Jurisdiction  of  Courts 155 

Liens  of  Judgments 162 

Limitation  of  Actions , 159 

Limited  Partnerships 172 

Married  Women 173 

Mortgages  of  Personal  Property 174 

Partnerships— Limited 172 

Place  of  Trial  of  Civil  Actions . . .  159 

Proceedings  Supplementary  to  Execution 4 164 

Redemption 163 

Sale — Under  Execution 164 

Security  for  Costs 164 

Suits — Commencement  of 158 

Summons 158 

Terms  of  Courts 156 

Usury 175 


TJTA.EL 
PART  VI. 


Acknowledgments 192 

Answer — Time  Allowed 178 

Appeals 186 

Arrest  in  Civil  Actions 180 

Attachments 179 

Chattel  Mortgages 195 

Commencement  of  Suits 178 

Corporations 194 

Courts 177 

Courts— Place  of  Holding 178 

Courts— Terms  of '. 178 

Courts— Their  Jurisdiction 177 

Deceased  Persons — Estates  of 187 

Depositions 189 

Estates  of  Deceased  Persons 187 

Examination  of  Judgment  Debtor 184 

Executions 182 

Executions — Proceedings  in  Aid  of 184 

Exemptions 182 

Homesteads  . .  188 


316 


INDEX. 


PAGE. 

Interest  and  Usury 195 

Judgments 181 

Judgment  Liens , 181 

Judicial  Records — How  Proved 191 

Jurisdiction  of  Courts 177 

Liens  of  Judgment 181 

*        Limitation  of  Actions • 179 

Married  Women 194 

Mortgages  of  Personal  Property *  195 

Partnerships  .* 193 

Partners — How  may  be  Sued,  &c  . . . 193 

Partners — Liability  of  Private  Property  for  Firm  Debts 193 

Partners — Assignment  and  Effect 193 

Proceedings  in  Aid  of  Executions 184 

Redemption ' 184 

Sale — Under  Execution 182 

Security  for.  Costs « 185 

Terms  of  Courts ; 178 

Time  Allowed  to  Plead  or  Answer 178 

Usury 196 


WASHINGTON  TERRITORY. 


PART  X. 


Acknowledgments 269 

Answer — Time  Allowed 255-256 

Appeals  and  Writs  of  Error , 266 

Arrest  in  Civil  Actions 260 

Attachments 258 

Chattel  Mortgages. '. 272 

Commencement  of  Suits 255 

Corporations 271 

Courts 253 

Courts— Terms  of. 254 

Courts — Their  Jurisdiction 253 

Courts — Where  Held : 254 

Deceased  Persons— Estates  of 266 

Depositions 268 

Estates  of  Deceased  Persons , 266 


INDEX.  317 

•  PACE. 

Examination  of  Judgment  Debtor 265 

Executions •  •  • .  262 

Exemptions  from  Execution 263 

Homesteads '. 267 

Interest 272 

Judgments 261 

Judgment  Liens 261 

Judicial  Records  of  other  States — How  Proved 269 

Jurisdiction  of  Courts 253 

Liens  of  Judgments , 261 

Limitation  of  Actions 257 

Limited  Partnerships 271 

Married  Women • 271 

Mortgages  of  Personal  Property 272 

Partnerships— Limited , 271 

Place  of  Trial— Civil  Action 256 

Proceedings  Supplementary  to  Execution 265 

Redemption 264 

Sale — Under  Execution , . .  264 

Security  for  Costs 265 

Sole  Traders 271 

Terms  of  Courts 254 

Time  Allowed  to  Answer 256 

Trial— Place  of * 256 

Writs  of  Error..,  ..266 


WYOMING. 
PART  VIII. 


Acknowledgments .' 236 

Answer — Time  Allowed 224 

Appeals 231 

Arrest  in  Civil  Actions 227 

Attachments 226 

Chattel  Mortgages , 238 

Commencement  of  Actions 224 

Courts .223 

Courts— Terms  of  and  Where  Held 224 

Courts — Their  Jurisdiction 223 

Deceased  Persons— Estates  of . .  . .  231 


318  INDEX. 

PAGE. 

Depositions 235 

Descents  and  Distribution  of  Property, .... 232 

Estates  of  Deceased  Persons 231 

Examination  of  Judgment  Debtor. . . . '. 230 

Executions 228 

Exemptions  from  Execution 229 

Interest 239 

Judgment  Liens 228 

Judicial  Records ." 236 

Jurisdiction  of  Courts 223 

Liens  of  Judgments 228 

Limitations  of  Actions 225 

Limited  Partnerships 237 

Married  Women 238 

Mortgages  of  Personal  Property 238 

Partnerships — Limited 237 

Place  of  Trial  of  Civil  Actions 225 

Proceedings  in  Aid  of  Executions 230 

Redemption 229 

Sale  under  Execution 229 

Security  for  Costs 230 

Terms  of  Courts 224 

Time  to  Answer 224 

Trial— Place  of 225 

Usury 239 


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